No Qualified Immunity for Arrest over "Fuck Trump" and "Fuck Biden" Flags

From Sheets v. Lipker, decided Monday by Judge Kyle Dudek (M.D. Fla.):

This case is about words—specifically, a four-letter expletive that has vexed legal authorities and amused teenagers for generations. Plaintiff Andrew Sheets, proceeding pro se, alleges that Officer David Joseph Lipker violated his First Amendment rights by citing him for displaying signs bearing the word "Fuck" in a public place….

Because this case is before the Court on a motion to dismiss, we accept the factual allegations in the complaint as true. Back in 2021, Sheets stood on a public sidewalk in Punta Gorda. He was there to protest. To make his point, he displayed two flags: one reading "Fuck Trump" and the other "Fuck Biden." He also wore a shirt emblazoned with the phrase "Fuck Policing 4 Profit."

Officer David Joseph Lipker approached Sheets and issued him a citation for violating City Ordinance 26-11.5(z), which prohibited the public display of obscene signs. The citation was allegedly issued because of the language Sheets displayed, and Defendants do not contend otherwise. Lipker then ordered Sheets to leave the sidewalk. Sheets complied, packed up his flags, and left….

Long ago, the Supreme Court settled the question of whether the government may act as the guardian of public morality by banishing the word Fuck from the public square. In Cohen v. California (1971), the Court considered the conviction of a man who walked through a courthouse corridor wearing a jacket bearing the words "Fuck the Draft." The State of California argued, much as Officer Lipker decided here, that such language was offensive conduct that disturbed the peace. The Court disagreed. It held that the "simple public display" of this "single four-letter expletive" could not be made a criminal offense consistent with the First Amendment. The Constitution, the Court explained, leaves matters of taste and style largely to the individual, recognizing that "one man's vulgarity is another's lyric." In the decades since, the law has been made clear: the state may not censor a citizen for public display of the word "fuck." See Mahanoy Area Sch. Dist. v. B. L. by & through Levy (2021)….

Officer Lipker asks for a free pass because he was enforcing an ordinance, but he enforced it against speech that has been protected for generations. He argues he did not mean to retaliate, but his citation targeted the very words he determined offensive. And he claims no harm was done, even though he silenced a citizen in the public square. None of these defenses hold water at this stage. When Officer Lipker cited Sheets for the content of his speech, he crossed a constitutional line that was drawn long ago….

Civility is a virtue, but it is not a legal requirement for political protest. When Officer Lipker cited Sheets for his choice of vocabulary, he ignored well-settled precedent protecting the very speech he sought to punish. He is not entitled to qualified immunity for that error….

UPDATE: I originally credited the opinion to the original district judge associated with the case; just corrected the post to instead name the actually authoring judge. My apologies for the error.

Comments

[John F. Carr]

"Officer Lipker asks for a free pass because he was enforcing an ordinance, but he enforced it against speech that has been protected for generations."

I have seen cases where an obviously illegal ordinance allowed a state law qualified immunity defense because that particular ordinance had not been explicitly invalidated.

[Dr. Ed 2]

But the word “fuck” has been EXPLICITLY protected.

Your example would be something like the word “Cunt head“ which hasn’t been explicitly protected.

[MickeyFitz]

Would the current Court agree with a 5-4 decision from 1971 or would the Court attempt to limit it?

[Martinned]

Officer Lipker would presumably have a heart attack if he saw the signs they carry around town here in The Hague.

[Longtobefree]

Just wondering, why don't they arrest the legislature that passed the law?

[Ruqt]

"Gee, Officer Krupke, Krup you!"
West Side Story, music by Leonard Bernstein, lyrics be Stephen Sondheim, Broadway Musical, 1957

"The lyrics highlight themes of juvenile delinquency, social, and psychological issues, with the gang mocking the system's inability to understand their, as they call it, 'social disease'."

[ReaderY]

I generally think that appropriately tailored laws that narrowly address road-rage inducing speech on public highways can pass heightened scrutiny for content-based prohibitions.

Driving involves quick reflexes and reactions, and signs that startle and/or enrage drivers can create accidents.

But the speech here probably wouldn’t meet such a standard. The word “fuck” has probably become so common that it probably doesn’t, as an empirical matter, tend to induce the sort of visceral or reflexive reactions that would cost accidents and justify a prohibition. Such a prohibition would have to be empirically justified. The state would have to show that the speech being prohibited actually tends to startle and distract drivers as a factual matter. Mere moral disapproval is insufficient to satisfy heightened scrutiny.

The statute here does not do this, however. It focuses on moral disapprobium, not danger to driver safety. As a matter of statutory construction, the rule of lenity would probably call for interpreting “obscene” in terms of the Miller v. California obscenity standard, and if so the word “fuck” by itself wouldn’t meet that standard, so the statute probably wouldn’t be violated without reaching constitutional issues.

[apedad]

So a driver who loses control of their vehicle and causes a serious accident when they see a VOTE KAMALA HARRIS FOR PRESIDENT sign is immune?

GTFO

[ReaderY]

Not at all. Saying signage can startle drivers does not in any way absolve drivers of responsibility for their conduct if they are startled. We operate under dual theories of human conduct. It is BOTH influenced by causal environmental factors in terms of determining prudent prophylactic measures, and,as a matter of legal responsibility, is the result of free will.

Studies suggest that in areas where there are lots of graffiti, people tend to be less law-abiding. That means a prudent local government may want to crack down on graffiti to reduce crime generally. But it DOESN’T mean people get to say “grafitti made me do it” and be excused.

This is no different.

Note: There are many situations in the law where external factors can mitigate the punishment without entirely absolving a person of guilt. Perhaps a person who claims he was startled by a sign might be able to persuade a traffic court judge to reduce the fine.

[Bored Lawyer]

Cracking down on graffiti in general would be content neutral, so that's less of a First Amendment issue.

[ReaderY]

I’m using it as an example of “partial” causality, in which environmental factors influence people’s behavior yet people remain legally responsible for their actions, and the existence of such a factor does not make people “immune,” as apedad said above.

The example I picked, graffiti, involved speech. But this was mere coincidence. I could have picked an example that didn’t.