He Tried Using the Fourth, But It Was Full of Holes

Radley Balko | January 14, 2009

Clearwater, Florida businessman Herb Quintero spent $500,000 renovating his bait and tackle shop and the property it's on, including commissioning a fish mural on the side of the building.  Though the mural contains no text, the city of Clearwater determined he needed a billboard permit, because the subject matter is related to his business. They began fining him $130 for each day he left the mural uncovered.

So Quintero responded (rather awesomely) by covering the mural with a banner depicting the First Amendment.  All of which sets up this beautiful line from a local news report of the dustup:

Meanwhile, the city's legal department is looking to see what, if anything, it can do about the First Amendment banner.

Thanks to Dick Nimmons for the link.

Comments

|1.14.09 @ 12:17AM|#

The first amendment is overrated anyway, I don't understand why the owner of the bait shop has a problem with the city.

By the way, I am making a video in which I give myself head. Anyone want to pre order their copy?

|1.14.09 @ 12:42AM|#

By the way, I am making a video in which I give myself head. Anyone want to pre order their copy?

How does that differ from your usual contributions to this forum?

|1.14.09 @ 12:54AM|#

>How does that differ from your usual contributions to this forum?

This time, he had to pull his head from his ass first.

Naga Sadow|1.14.09 @ 1:09AM|#

I'm beginning to suspect that Balko IS Lefiti. Could just be my paranoia acting up again though . . .

Craig|1.14.09 @ 1:33AM|#

Nice story, but I don't see how the First Amendment prohibitions on Congress would affect a city government, though.

MikeB|1.14.09 @ 1:34AM|#

Luckily it wasn't a banner depicting the second admendment. The city would have arrested him for making terroristic threats.

Lefiti|1.14.09 @ 1:47AM|#

Yeah, you libertards just think every building should be plastered with advertising. I bet those Obama murals just burn you up. The horror of someone painting something that sends a socially progressive message like Hope or Change, or shows people working together for the betterment of the community, instead of "Spend Money Here".

BTW, stop spoofing me.

Lefiti|1.14.09 @ 1:52AM|#

"I'm the smartest, I'm the toughest. I will find a hole and fuck it. If there ain't one, I will make one."

"Lefiti don't take shit from no one!"

cuernimus|1.14.09 @ 1:52AM|#

Since this is a Balko story, let's hope he gives his dog up for adoption before some authority figure feels "threatened" by it.

Elemenope|1.14.09 @ 1:55AM|#

Meanwhile, the city's legal department is looking to see what, if anything, it can do about the First Amendment banner.

A few reactions:

The town needs to learn when they've got schooled and give up.

I laughed for a solid ten seconds after reading that.

Then, the creeping notion that anyone could in seriousness attempt to get such a banner removed made me very sad...for humanity.

Nice story, but I don't see how the First Amendment prohibitions on Congress would affect a city government, though.

The Fourteenth Amendment's a real bitch, isn't it?

|1.14.09 @ 1:55AM|#

BTW, stop spoofing me.

If that comment reflects your actual value to this discussion, I'm guessing the autofellatio video is a better deal (and more intelligent, to boot).

Mister DNA|1.14.09 @ 1:59AM|#

I admire Herb Quintero's moxie, but he didn't need to paint a new mural. He could have just picked out a random Bible quote and added it to the original. City officials (especially in the south) don't want to be seen as anti-Christian.

|1.14.09 @ 2:03AM|#

"If that comment reflects your actual value to this discussion, I'm guessing the autofellatio video is a better deal (and more intelligent, to boot)."

foobie, if you think that is intelligent you should see the inter species erotica video I made of me and a emu.

Naga Sadow|1.14.09 @ 3:06AM|#

That poor emu! Where is PETA when you did it?

Abdul|1.14.09 @ 8:02AM|#

That poor emu!

Somehow, I'm guessing that the emu didn't even notice.

|1.14.09 @ 8:11AM|#

Again, IMO, it is a very weak, intellectually indefensible position to cling to the crapola that a city has the right to regulate speech, including so-called "commercial speech".

1. Did the framers of the FLorida constitution cede the right of speech? Is there an express provision that grants that Florida's political sub-divisions have the right to prohibit speech? Or to prohibit commerecial advertising? Or to "regulate" it?

2. The guy has a natural, inalienable right to paint murals on the walls of his property and such a right is ABSOLUTE. One does not cede such a right just because other people buy the nihilistic non-sense that tyranny has a stake in the issue.

|1.14.09 @ 8:54AM|#

If the issue was that the mural was related to the business, he should have replaced it with one of a dog taking a shit.

"It's art, dude."

Reinmoose|1.14.09 @ 8:56AM|#

awesome

|1.14.09 @ 9:37AM|#

YES.

Fluffy|1.14.09 @ 9:51AM|#

Once again, the absolutely dreadful case law relating to speech leads to an absurd and silly outcome.

The idea that commercial speech is not protected speech is based on the idea that the state must have a way to battle fraud. But that entire line of argument is a red herring, since in a fraud the speech itself is not at issue. You can SAY you have a cure for cancer all you want. When you take money from someone for that cure for cancer, you have entered either an explicit or implied contract to provide that cure. When we ban fraud, we aren't criminalizing the speech - we're criminalizing failing to deliver on a promise made under the terms of a contract.

But the bad faith reasoning that criminalizing fraud = regulating commercial speech has led us to a place where PAINTING A PICTURE OF A FISH is a criminal act.

|1.14.09 @ 10:03AM|#

Ah, the Bay Area is back in the news. What's it been, a day? We're banning exciting swimwear from the beaches at Ft. DeSoto as well.

I don't see how this isn't viewpoint discrimination, though I suppose courts have been allowing restrictions on billboards and the like. A tangled mess is created when preferred results guide legal reasoning.

Elemenope|1.14.09 @ 10:11AM|#

The idea that commercial speech is not protected speech is based on the idea that the state must have a way to battle fraud. But that entire line of argument is a red herring, since in a fraud the speech itself is not at issue. You can SAY you have a cure for cancer all you want. When you take money from someone for that cure for cancer, you have entered either an explicit or implied contract to provide that cure. When we ban fraud, we aren't criminalizing the speech - we're criminalizing failing to deliver on a promise made under the terms of a contract.

Well, while I agree with your reasoning as such, you are I think minimizing the point at which we as a society of commerce rely upon people to be mostly not full of shit when they hawk their products. Fraud is not just screwing someone on services rendered, it is also using the arts of persuasion to convince someone to enter into that agreement for services in the first place.

I agree that the commercial speech laws in many ways are boned, but I think your minimalist approach would be something of a nightmare.

|1.14.09 @ 10:13AM|#

Q: Nice story, but I don't see how the First Amendment prohibitions on Congress would affect a city government, though.


A: Incorporation of the portions of the bill of rights the supreme court likes (i.e. not the 2nd) to apply to all lower governments. Hence why city officials can't ban mosques or some crap (though that would probably also be illegal according to the state constitution).

creech|1.14.09 @ 10:19AM|#

The Florida constitution says every person may "speak, write or publish" his sentiments on any subject. I guess they need to add "paint" too.

Sam Grove|1.14.09 @ 10:23AM|#

I admire Herb Quintero's moxie, but he didn't
need to paint a new mural.

He didn't, he hung a banner over it.

|1.14.09 @ 10:29AM|#

The real issue is the desire of petty tyrants to tell everybody else what to do.

Unfortunately, for every person wiling to defend the right of tackle shop owners to paint fish on their buildings, there are one hundred who will ask, "What if somebody painted TITTIES on his wall? We must protect our precious little children from titties, your stupid 'freedoms' be damned!"

The next thing you know, some crazy Mexican will have a weird Aztec snake and the Virgin Mary painted on his wall.

Urkobold™|1.14.09 @ 10:35AM|#

"PAINTED TITTIES?" LIKE THESE?

|1.14.09 @ 10:48AM|#

Hey! You gotta permit for that paintbrush?

|1.14.09 @ 10:52AM|#

"I think that your minimalist approach would be something of a nightmare."

Pure specualtion. This is what courts too often do to justify restricting or prohibiting the liberty in question. That some glib grifters may, by means of their powers of persuasion, lighten the wallets of those easily duped, is not contested here. However, the speculation that some may be harmed if the state cannot limit or prohibit commercial speech, is no justification for such state action. It assumes that the evil men may do in private outweighs the evil men may do with a gun and a badge. All of the 20th century kind of destroyed that position.

Sure, some of your prediction is predicated, no doubt, on your experiences and command of human nature, but, me thinks that is no basis to leap to prognostications of nightmarish proportions.

Elemenope|1.14.09 @ 11:03AM|#

libertymike --

Let's say there's a gang of thugs in a warehouse who will rob and beat any who enter. The sign above the door to the warehouse says "New Cars for $200, come inside!" Is the guy who hung the sign liable for the beatings and thefts that ensue, or is it all on the thugs?

Now, would it be reasonable to criminalize hanging such a sign even if the vast majority of people are not stupid enough to enter? That's an open question, I suppose.

Tyler|1.14.09 @ 11:09AM|#

Maybe I should start stealing $130 a day from my city government every time they say something I don't like.

Oh wait. That's stealing. When they do it, it's "fining."

|1.14.09 @ 11:11AM|#

"Luckily it wasn't a banner depicting the second admendment. The city would have arrested him for making terroristic threats."

No Lie, here in the Houston'burbs, one of the elderly town curmudgeons sent a letter to City Hall last year requesting some information, and he had affixed to the envelope a label he had picked up at the Post Office that read, "I Support Olympic Shooting Sports".

The mayor accused him of using the sticker to intimidate and threaten city staff.

|1.14.09 @ 12:03PM|#

Elemenope-

In your hypothetical, is the guy who hung the sign, also one of the thugs? If so, the easy answer is that yes, he is liable for the criminal act of conspiring with the other thugs for assault/battery/larceny, etc-even if he did not physically participate in the assault/battery/larceny.

Elemenope|1.14.09 @ 12:09PM|#

libertymike --

Then make it the harder case. He knows what is going to happen but he himself is either tangentially related or unrelated to the thugs who will actually carry out the acts.

Say, for the sake of argument, he's a sadist, and that is what motivates him to put up the sign.

lunchstealer|1.14.09 @ 12:19PM|#

lmnop,

You're saying that he put up such a sign in an unsecured building knowing that thug or thugs unknown would likely show up and take the opportunity to mug the rubes who believe the sign?

If so, I'd say that there might be a case for criminal negligence, and certainly a case for a civil action. Certainly no need for prior restraint. In any case, it's an implausible hypothetical, and no justification for restricting speech.

|1.14.09 @ 1:10PM|#

ELemenope and lunchstealer-

Lunchstealer, you beat me to it-prior restraint is the issue. Elemenope, you know that I am incorrigible anarchist; however, putting that aside, I think even within our broadly recognized and understood conceptions of speech and the jurisprudence that has placed limitations on same, prior restraint is not the answer here.

I know that I may come off as favoring criminal liability only for state actors, but the sign maker in your hypothetical should get some time with Bubba.

How's that for nice and nuanced?

Elemenope|1.14.09 @ 1:11PM|#

If so, I'd say that there might be a case for criminal negligence, and certainly a case for a civil action. Certainly no need for prior restraint. In any case, it's an implausible hypothetical, and no justification for restricting speech.

Who said anything about prior restraint? We've been talking about commercial speech being punished after the fact, not a court stopping someone from publishing it in the first place (which is what prior restraint is).

And, yes, it is an implausible hypothetical, but only because of the extremity of *act* being portrayed. My point was, if someone publishes something fraudulent, we punish it because convincing a person to agree to a fraudulent service is as much a part of the fraud as actually failing to deliver it once agreed to.

|1.14.09 @ 1:53PM|#

Elemenope-

Yes, I agree. The speech, whether it be commercial or otherwise, if it is part of the fraud, is part of the reason why the speaker should be prosecuted and convicted.

BTW, I like hypotheticals-even if they are "out there" like MNG's.

The Captain|1.14.09 @ 2:39PM|#

I admire Herb Quintero's moxie, but he didn't need to paint a new mural. He could have just picked out a random Bible quote and added it to the original. City officials (especially in the south) don't want to be seen as anti-Christian.

Mr. DNA,
I found the perfect quote:

Jesus said, "Take the boat out to deep water and put your nets in the water to catch some fish." Luke 5:4

Cap'n NoStar

economist|1.14.09 @ 4:59PM|#

"The problem is that they are protected by something called the First Amendment."
"When, exactly, did your administration come up with this "first amendment" and didn't your foresee that problems like this could occur?"

|1.14.09 @ 10:40PM|#

Er, what counts as prior restraint, or punishment after the fact? If the government punishes the sotre owner after he puts up the sign, but before the beatings occur, or after any beatings occur?

Or, to make this more relevant to the case, if the government requires a permit prior to putting up a sign, so as to prevent people from putting up mislieading and possibly harmful sign.

The notion of permitting billboards seems to me to be pretty straightforwardly "prior restraint", text or no text. Even if the fines occur "after the fact" of the billboard being erected.

If you're not advocating that permits be required or fines be imposed prior to any harm actually having occur, then I'm simply confused as to what your point is.

daveednyc|1.15.09 @ 11:01AM|#

I admire Herb Quintero's moxie, but he didn't need to paint a new mural. He could have just picked out a random Bible quote and added it to the original. City officials (especially in the south) don't want to be seen as anti-Christian.

The irony is that Clearwater is run by the Church of $cientology... Maybe Quintero should have signed up for a couple of audits beforehand.