Sheriff’s deputies in Clark County, Ohio wrongly arrested a man for shouting vulgarities at them and sporting a t-shirt that said “fuck the police,” a federal appeals court ruled on February 8.
The Sixth Circuit Court of Appeals ruled that the man, Michael Wood, was entitled under the First Amendment to curse a bunch of sheriff’s deputies who were making him leave a county fair after a citizen called 911 to complain about his shirt. The deputies were not entitled to qualified immunity from Wood’s request for monetary damages against them, the court ruled, because Wood’s right not to be arrested for such speech was clearly established by years of court rulings protecting people from arrest for aiming obscene language at police and public officials. So Wood can sue the deputies for money, such as over emotional distress.
“The Sixth Circuit got this one right, and we’re very pleased with the result,” said David Carey of the ACLU. “The ruling removes any doubt that criticism of police and their actions—even coarse and profane criticism—falls under the core protections of the First Amendment, and cannot be a lawful basis for an arrest on its own.”
Wood wore the shirt to the Clark County Fair in July 2016 out of anger over his past negative encounters with the Sheriff’s Office.
After a fair patron notified police about Wood’s shirt, Clark County Sheriff’s deputies and the fair’s executive director told Wood to leave the fair. As Wood headed toward the exit, he insulted the director and the sheriff’s deputies.
“One, two, three, four, five, six motherfuckers. Six bitch-ass fucking pigs,” Wood exclaimed. “Fucking thugs with guns that don’t uphold the United States Constitution. Fuck all you. You dirty rat bastards.”
Wood demanded to go out through the fair’s back gate, defying deputies’ demands that he leave through the front gate. (“Then that’s your fucking fat-ass problems, motherfucker, I’m leaving.”)
The sheriff’s deputies arrested Wood a while later and he was charged him with disorderly conduct and obstruction. Prosecutors later dismissed both charges. Wood filed a First-Amendment lawsuit against the deputies, claiming false arrest and violations of free speech.
The deputies countered that Wood’s arrest was lawful under the “fighting words” doctrine established by the Supreme Court’s 1942 ruling in Chaplinsky v. New Hampshire. That doctrine still theoretically exists, but it has been narrowed to almost nothing.
A federal trial judge dismissed Wood’s lawsuit, ruling that Woods’ speech was not protected under Ohio state courts’ rather expansive reading of the “fighting words” doctrine.
But the appeals court overturned that ruling, ruling that Ohio’s interpretation of the fighting words doctrine was broader and inconsistent with federal court rulings, and finding that, while Wood’s speech including profanities, it did not produce a risk of immediate violence.
Carey says a contrary ruling would have had “very disturbing implications—essentially creating a ‘race to the bottom’ situation, where police could disregard First Amendment protections that have been clearly established in federal court, as long as they could find a state court case that had been less protective of free speech.”
There are prior federal court rulings recognizing a First Amendment right to make obscene gestures towards, or otherwise insult, cops. In 1987, the Supreme Court overturned a Houston ordinance banning verbal abuse against cops, ruling that “the freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”
The federal appeals court ruling in favor of Wood observes that it previously ruled in 2002 that a Michigan man had a First Amendment right to call an officer an “asshole,” and that it had ruled a decade later that saying “fuck the police” didn’t amount to “fighting words.”