The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"Cops Ahead" Sign Protected by First Amendment, at Least Given Specific Connecticut Statutory Scheme
"Look out" vs. lookout.
From Friend v. Gasparino, decided yesterday by Second Circuit Judge Steven Menashi, joined by Judges Gerard Lynch and Richard Sullivan:
On April 12, 2018, Plaintiff-Appellant Michael Friend responded to a distracted-driving enforcement operation conducted by Defendant-Appellant Sergeant Richard Gasparino and the Stamford Police Department. Friend stood down the street from where the police were stationed and displayed a sign reading "Cops Ahead." Gasparino twice confiscated Friend's signs and ultimately arrested him for interfering with an officer under Connecticut General Statutes § 53a-167a(a)….
A First Amendment violation, the court held (among other things):
Friend's speech would have lacked First Amendment protection if it were "integral to criminal conduct," a category of speech that historically may be restricted. The "constitutional freedom for speech and press" does not "extend[ ] its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute." Thus, "the First Amendment is quite irrelevant if the intent of the actor and the objective meaning of the words used are so close in time and purpose to a substantive evil as to become part of the ultimate crime itself." "In those instances, where speech becomes an integral part of the crime, a First Amendment defense is foreclosed even if the prosecution rests on words alone." Thus, in some cases, speech that helps another person engaged in criminal activity evade detection by law enforcement may be subject to criminal penalties. See, e.g., United States v. Cassiliano (2d Cir. 1998) (affirming an obstruction-of-justice sentencing enhancement because the defendant contacted a "principal target[ ] of the government's investigation[ ]" to "alert[ ]" him "to the investigation and discuss[ ] whether they would lie to" investigators); United States v. Arzola (6th Cir. 2013) (affirming an enhancement because a defendant alerted a co-conspirator before law enforcement executed a search warrant).
Friend's speech does not fall within this category. Friend was not acting in coordination with lawbreakers such that he could be said to have been engaged in a conspiracy to commit violations and evade detection. Gasparino cannot identify a crime that Friend committed, let alone a crime to which Friend's speech was "integral." The only offense with which Friend was charged—and for which Gasparino arrested Friend—was interference with a police officer under § 53a-167a. But … Friend's conduct did not violate that statute. The Connecticut Supreme Court has long construed the statute "to proscribe only physical conduct and fighting words that by their very utterance inflict injury or tend to incite an immediate breach of the peace." Because there is no predicate crime that Friend even arguably committed, Gasparino cannot show that Friend's speech was unprotected for being "integral to criminal conduct."
{Friend's conduct also did not constitute incitement or aiding and abetting. Friend's sign was not "directed to inciting or producing imminent lawless action" or "likely to incite or produce such action." Furthermore, § 53a-8 of the Connecticut Penal Code, which imposes criminal liability for aiding and abetting "an offense," does not extend to motor vehicle violations. The Connecticut Motor Vehicle Code does not include a complicity provision.} …
The mere fact that speech is protected by the First Amendment does not mean that it is always immune from regulation. But restricting such speech requires the government to satisfy a higher burden than the district court applied in this case….
Strict scrutiny permits the government to restrict speech "only if [it] proves that [its restrictions] are narrowly tailored to serve compelling state interests." Narrow tailoring requires that the restriction on speech be "necessary to serve the asserted compelling interest, … precisely tailored to serve that interest, and … the least restrictive means readily available for that purpose." This is a "strict test" because "regulations of speech based on its content 'are presumptively invalid.'"
The district court concluded that, even assuming Friend's speech was protected by the First Amendment, Gasparino's actions satisfied strict scrutiny because those actions served a compelling state interest and were narrowly tailored to that interest. First, the district court held that "the police department's interest was in saving lives by stopping distracted drivers and issuing citations for their behavior" and that "this was a sufficiently compelling interest." Second, the district court determined that "the only way in which Gasparino could tailor punishment was to remove Friend and his signs from the adjacent area," that "[t]he operation could only effectively continue without Friend's interference," and that "there was no less restrictive alternative." Both conclusions were erroneous.
While we agree that the state has "an unqualified interest in the preservation of human life," the district court erred by defining the interest as "saving lives by stopping distracted drivers and issuing citations for their behavior." In so defining the relevant interest, the district court did what the Supreme Court has expressly disallowed: it took "the effect of the [restriction] and posited that effect as the State's interest." … [N]either Gasparino nor the district court explain why Connecticut has a compelling interest not simply in saving lives, or even in the enforcement of distracted driving laws, but specifically in doing so by "issuing citations" to distracted drivers. As noted above, a content-based restriction on speech must be narrowly tailored to a compelling interest. The district court here, however, tailored the compelling interest to the restriction by defining the compelling interest in "saving lives" in terms of the specific means of serving that interest—issuing citations—that Friend's protest made more difficult to accomplish. Defining the compelling interest so narrowly "eliminates the entire inquiry concerning the validity of content-based discriminations" because "[e]very content-based discrimination could be upheld by simply observing that the state is anxious to regulate the designated category of speech" through the means it has already chosen.
The compelling interest asserted in this case is properly defined as the state's interest in saving lives or perhaps in the enforcement of distracted driving laws. We do not question the seriousness of the state's interest in enforcing traffic laws, including laws regulating distracted driving. But we must ask whether Gasparino's arrest of Friend and confiscation of Friend's signs were narrowly tailored to advance those arguably compelling interests. As explained above, Connecticut has not enacted any law that proscribes conduct such as Friend's. As a result, Gasparino cannot establish that his discretionary restriction of Friend's speech was "necessary to serve" Connecticut's interests in saving lives or in enforcing traffic laws. Connecticut's legislature and state courts have concluded that restricting speech such as Friend's is not necessary to advance the state's interests, and yet Gasparino unilaterally decided to impose such a restriction. Gasparino identifies no exigency or emergency to justify his decision but argues instead that he could impose a speech restriction in his discretion based on arguments that the state itself has disclaimed. That cannot satisfy narrow tailoring.
{We need not decide whether a state could under any conceivable set of circumstances prohibit actions such as Friend's or what sort of showing it would need to justify such a law.}
This, of course, leaves open the question whether warning people about upcoming police enforcement might be constitutionally unprotected if such conduct were aiding and abetting a traffic offense under state law. (To be sure, "Cops Ahead" encourages people to follow the law, not violate it; but it in the process aids people in avoiding detection for their violations, much as would be the case with a "Police Are Coming" warning to gang members or burglars who are about to commit a felony.)
Congratulations to Dan Barrett & Elana Bildner (ACLU Foundation of Connecticut), who represented Friend.
