Ray-Ray Armstrong, the First Amendment, and man-barks-at-dog stories

|The Volokh Conspiracy |

Gary Gagliardi, a Boynton Beach, Fla., chiropractor, and his wife Rae Lynn, have donated 19 bullet-proof vests for police dogs at the city's police department and the Palm Beach County Sheriff's Office. Here, Sado, a 7-year-old German Shepherd, barks at passersbys while wearing his new bullet-proof vest Sunday, May 9, 1999. K-9 partner Rich O'Connor of the Boynton Beach Police Department keeps a tight hold of his leash. The two have been partners for five years. O'Connor will put the vest on the dog only when he judges the situation to be dangerous for the dog, he says. It only takes a few quick moments to put the dog in the vest. (AP Photo/Ft. Lauderdale Sun-Sentinel,Taylor Jones) Original Filename: POLICE DOG VESTS.jpg ORG XMIT: FLLAU101
Sado, a 7-year-old German Shepherd, barks at passersby while wearing his new bullet-proof vest. Sado works for the Boynton Beach, Fla., Police Department. (Taylor Jones/Ft. Lauderdale Sun-Sentinel via Associated Press)

ESPN reports:

The Allegheny County Sheriff's Office is investigating a Raiders player, which a source with direct knowledge of the situation identified as linebacker Ray-Ray Armstrong, for allegedly taunting a K-9 service dog before Oakland's game Sunday against the Steelers.

The alleged crime would be considered a third-degree felony in Pennsylvania.

The crime is Pa. Consol. Stats. Title 18, § 5511.2:

It shall be unlawful for any person to willfully or maliciously taunt, torment, tease, beat, kick or strike a police animal. Any person who violates any of the provisions of this subsection commits a felony of the third degree.

It may perhaps surprise you that there is actually caselaw on the First Amendment and dog-taunting statutes. In State of Ohio v. Gilchrist, an Ohio trial court had held that "enforcement of the statute under the [facts in that case] would violate [defendant's] right to free speech." "[B]ecause physical contact could not have occurred between the police dog and appellee, and since appellee was across the street from the vehicle that contained the dog, appellee's arrest and the complaint against him were based exclusively on his barking (i.e., speech)." The Ohio Court of Appeals didn't address the First Amendment argument, but affirmed the trial court's dismissal of the charges, apparently because the state didn't challenge the dismissal.

But then in State of Ohio v. Stephens, another Ohio trial court upheld a conviction for barking at a police dog, reasoning (some paragraph breaks added):

Unlike Gilchrist, the Defendant was only a few inches from the K-9's snout. Although a steel cage blocked the K-9 from exiting the vehicle, the Defendant's barking and hissing combined with his proximity to the vehicle stirred the K-9 to a violent and disruptive level. If the disruption had continued the K-9 could have been seriously injured or could have caused great damage to the police cruiser.

The United States Supreme Court has held "that when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether "[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it." In this case, the Court fails to see any message the Defendant intended to convey, but even if there was a communicative value to the Defendant's barking and hissing, it is clear that this ordinance is directed toward prohibited conduct and impairment of a First Amendment right is incidental.

Furthermore, preventing any citizen from taunting, teasing, tormenting, beating, or striking a police K-9 is a "sufficiently important governmental interest." Not only is the statute enacted to protect the K-9 but also to protect the citizens of the City of Mason. If the City allowed the K-9 to be tormented or beaten, the K-9 could very easily become violent not only during the course of its police duties (when it is necessary) but also during the normal day to day activities of the Officer in charge of the K-9. Police Officers interact on a daily basis with the citizens of the jurisdiction they protect. A violent Police K-9 would not only be a threat to itself but also to the citizens of the community in which the K-9 was located.

It is also reasonable to think the K-9 may not become violent but rather skittish or afraid of people and unable to perform its duties if they are repeatedly tor1nented or beaten. If the K-9 is unable to perform its duties, the Officer in charge of the K-9 could become vulnerable or less safe.

Since there is a strong likelihood of danger to the K-9, the Officer, and the community, the City of Mason has a "sufficiently important governmental interest" in protecting its K-9's. Therefore, MMC §505.15 does not violate the Defendant's First Amendment right of "free speech."

I think the Stephens First Amendment analysis is largely correct, but I think that saying that the ordinance is directed toward "conduct" rather than speech" might insufficiently explain the key point: The First Amendment protects communications to humans, especially when those communications are barred because of the message they communicate (and the harms that might flow from the message), and not communications to animals or, say, to computers.

Telling a dog, "attack!," shouldn't be treated as speech (at least when the person is prosecuted for causing the dog to attack), but rather as no different from letting a straining dog off a leash, or for that matter typing a command to a computerized weapon that causes the weapon to shoot. Likewise, communicating to a dog, whether through words, symbols, or barks, in a way that is known to cause the dog to get angry, disturbed or something else, is not "speech" for First Amendment purposes.

Laws that are applied to restrict barking at humans, when the barking is intended and likely to communicate a message, and the message is seen as offensive, are subject to First Amendment scrutiny (though they might still be upheld if they are limited to so-called "fighting words," i.e., face-to-face personally addressed insults). But laws that restrict barking at dogs should either be subject to no First Amendment scrutiny at all or subject at most to the very modest so-called "intermediate scrutiny" that the Stephens decision applied. The earlier Gilchrist decision may make sense on its facts, but only if there was no risk of seriously disturbing the dog there, which would suggest that Gilchrist was actually prosecuted for offending humans, not for disturbing the dog.