The Volokh Conspiracy
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Insulting Anti-Gay Preaching at PrideFest Event May Have Been Protected by the First Amendment
(depending on whether the preacher also violated content-neutral conduct restrictions).
From an order this Monday by Judge Kevin Castel (S.D.N.Y.) In Rusfeldt v. City of New York (just an excerpt of a long opinion):
Pastor Aden Rusfeldt brings claims arising from his interactions with and arrest by officers of the New York City Police Department ("NYPD") that occurred while he was holding up a large sign on a long pole reading "Fags and Whores Burn in Hell" at the June 27, 2021 PrideFest in Manhattan….
The First Amendment protects Rusfeldt's right to express his message and the Pride festivalgoers' right to express their hostility to his message. The expressive elements of Rusfeldt's hateful message and the festivalgoers' expressed antipathy to the message do not require law enforcement to turn a blind eye to the potential that the physical proximity of the two groups could lead to unlawful behavior. But the permissible means to mitigate the potential for escalation cannot be the removal of a person engaging in protected speech merely to appease others offended by his expressive activity. Provocations to immediate violence may change the calculus.
When police officers learned that objects and liquids had been thrown by members of the crowd of Pride festivalgoers in the direction of Rusfeldt, they stepped into action. They could have ordered the crowd dispersed or arrested an offender, if the person was observed and could be identified and apprehended. Police officers selected a different response, at first standing in between Rusfeldt's group and the crowd and then moving metal barriers into place between the two groups, which did not impair the ability of Rusfeldt or the festivalgoers to deliver their messages.
Law enforcement also had concerns that Rusfeldt was on the sidewalk with a long pole holding his message aloft, potentially blocking the sidewalk and presenting a hazard to others. Police officers told Rusfeldt to move—or, as defendants now characterize it, ordered him to disperse. Rusfeldt was ultimately arrested. The "Complaint/Information" for the violation of at least one of New York's disorderly conduct provisions (N.Y. Penal Law § 240.20(7)), which was affirmed by the officer on the date of the arrest, noted that Rusfeldt was "in possession of a large metal pole. Defendant was asked to relinquish the pole and refused to do so." The charges were later dismissed without any court appearance.
The lawfulness of Rusfeldt's arrest does not turn on whether the individual officers loved or hated his message but on whether they had probable cause to arrest him and whether they would have arrested another person with a very different message under similar circumstances.
The fog of police action on June 27, 2021 is not sufficiently clarified by snippets of video, augmented by deposition testimony. Material issues of fact abound that preclude this Court from definitively opining on the lawfulness of police conduct….
Defendants assert that the words used by Rusfeldt on a large sign held aloft on a pole, "Fags and Whores Burn in Hell," were intended by Rusfeldt "to shock and upset his target audience: members of the LGBTQ+ community. In that context his sign was fighting words unworthy of protection under the First Amendment."
Defendants' position is profoundly wrong. Obnoxious and loathsome speech is protected under the First Amendment. Snyder v. Phelps (2011) (citation omitted) ("If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."); see also National Socialist Party of America v. Village of Skokie (1977) (per curiam) (vacating order enjoining "displaying any materials which incite or promote hatred against persons of Jewish faith"); Brown v. State of Louisiana (1966) (citations omitted) ("Participants in an orderly demonstration in a public place are not chargeable with the danger, unprovoked except by the fact of the constitutionally protected demonstration itself, that their critics might react with disorder or violence.")….
Rusfeldt mounts a First Amendment challenge to his arrest. It stands or falls principally on whether there was probable cause for his arrest. The Supreme Court has considered "whether probable cause to make an arrest defeats a claim that the arrest was in retaliation for speech protected by the First Amendment." The Court concluded that the existence of probable cause defeated the claim. The Court noted one possible exception to the rule: "Although probable cause should generally defeat a retaliatory arrest claim, a narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so." …
Rusfeldt makes no effort to show that NYPD officers typically do not make arrests in similar circumstances when the participants are not engaged in expressive activity or when they are expressing a favored viewpoint. Rusfeldt's effort to draw a close analogy to police inaction in response to the conduct of the Pride crowd of festivalgoers fails. The police were across the street when objects were thrown in the direction of Rusfeldt, and the record does not permit the conclusion that the police had the ability to identify and arrest the offender or offenders. It was only Rusfeldt, and not any of the festivalgoers, who was on the sidewalk holding aloft a long metal pole supporting a banner, a pole which arguably presented a hazard to those in proximity to it. No reasonable factfinder could conclude that the waving of a rainbow flag by one Pride festivalgoer seen on a video presented a hazardous or physically offensive condition.
Rusfeldt asserts that as a matter of law there was no probable cause for his arrest. Defendants assert that as a matter of law there was probable cause for his arrest. (ECF 109 at 17-21.) The Court concludes that there are material issues of fact that preclude summary judgment.
The principal statute relied upon by the parties with respect to their probable cause arguments is N.Y. Penal Law § 240.20, which provides, in pertinent part, as follows:
A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof: …
[(6)] He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or
[(7)] He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose….
Rusfeldt does not dispute that the NYPD gave him orders to leave the area, that he understood these orders, and that he did not comply with them. He also does not dispute that the NYPD officers were motivated by a desire to control or maintain the public order "that was either disrupted or threatened to be disrupted by the crowd that gathered around" him when they issued these orders. Rusfeldt argues, however, that these orders were not "orders to disperse," as the term is used in N.Y. Penal Law § 240.20(6), and that they were also unlawful orders.
An order by police for an individual to disperse or leave an area while exercising his right to free speech is a restriction on that speech. Because Rusfeldt was ordered to disperse under a New York statute and that order restricted his speech, the Court must determine both whether the order was "lawful" under New York law and whether it satisfied the requisite Supreme Court standard for a restriction of Rusfeldt's constitutional rights under the First Amendment. See id. (citations omitted) ("The First Amendment, however, 'does not guarantee the right to communicate … at all times and places or in any manner that may be desired.' … At issue here is the balance between an individual's First Amendment right to engage in a conversation on a public sidewalk with protestors and the government's interest in maintaining public safety and order.")…. [Factual details on this, as well as on whether Rusfeldt's carrying the pole or Rusfeldt's blocking the sidewalk created a hazardous condition, omitted. -EV]
The court therefore allowed Rusfeldt's First Amendment claim to go forward.
