Arrest of Commenter at City Council Meeting for Accusing Police of Being "Fascist" and "Pro Domestic Abuse" Violated First Amendment
An excerpt from yesterday's long decision by Chief Judge Stephanie Rose (S.D. Iowa) in Petersen v. City of Newton:
The constitutional violations alleged in this case stem from the enforcement of Newton's Derogatory Comments Rule …, which prohibited speakers from making "derogatory statements or comments about any individual" during the public comment portion of city council meetings….
[In August 2022,] Newton Police Officer Nathan Winters arrested Tayvin Galanakis during a traffic stop—an incident that drew Petersen's attention to the police department. Petersen investigated and discovered that Officer Winters was subject to a civil no-contact order related to domestic abuse allegations. When Petersen submitted public records requests seeking information about how the department had handled the matter, the City denied them….
Petersen attended the October 3, 2022 city council meeting to speak during the public comment period. He began reading prepared remarks characterizing the police department as "violent" and "pro domestic abuse." Mayor Hansen interrupted, declared Petersen in violation of the Rule, and directed Chief Burdess to remove him from the meeting. When Petersen insisted on finishing his remarks, Chief Burdess arrested him for disorderly conduct. This arrest was unprecedented—no one had ever been arrested at a Newton city council meeting before. Yet, at this same meeting, other speakers made critical comments about city officials that Mayor Hansen permitted under the Rule.
For example, Fred Rhodes criticized the city's rental inspector, alleging corruption and claiming the inspector had "free rein" to find code violations and a "blank check" to boost his income by failing property inspections. Mayor Hansen characterized these statements as "totally false" yet concluded they did not violate the Rule because they were merely opinion that did not damage the inspector's reputation.
Similarly, Dana VanGilder suggested the rental inspector had a conflict of interest because failing property inspections could generate income. Mayor Hansen did not enforce the Rule against VanGilder, even though he acknowledged her comment was "wrong" and that she "should have known" it was false.
Barney Bushore also criticized the inspector at the October 3 meeting, calling the inspector's actions "ridiculous" and expressing astonishment at "some of the things they come up with." Mayor Hansen allowed these comments to proceed without interruption because Bushore—whom Hansen described as a "very good friend"—had discussed them with the Mayor beforehand. He explained that Bushore's remarks were permissible because they targeted "the policy and the program, not the individual."
Following the incident with Petersen, Mayor Hansen met with Chief Burdess and the city administrator to develop protocols for handling similar situations. The officials agreed to suspend meetings if future speakers violated the Rule. Additionally, they determined that speakers who refused to follow official directives would be removed from the meeting by law enforcement and potentially face further legal consequences, including criminal charges or no-trespass orders….
On October 24, 2022, Petersen attended another city council meeting. Mayor Hansen opened the proceedings with what he termed a "civics lesson," directing a city attorney to read a prepared statement about the Rule. The attorney explained that public officials were constitutionally permitted to impose reasonable time, place, and manner restrictions on expressive conduct and noted that speakers were prohibited from making irrelevant remarks or using profanity during the public comment period. The statement emphasized that violators of the Rule would be subject to removal from the meeting. When the public comment period began, Petersen rose to speak.
During his remarks, Petersen referred to Mayor Hansen and Chief Burdess as "fascists" who "need to be removed from power." Mayor Hansen immediately gaveled him down and warned Petersen not to "address the chief of police in that manner." When Petersen reiterated his criticism, Mayor Hansen suspended the meeting and ordered him to leave the chambers. As Petersen walked toward the exit in apparent compliance, Lieutenant Christopher Wing intercepted him at the door and arrested him for disorderly conduct. When Petersen protested that he was attempting to leave as directed, Wing placed him in handcuffs and served him with a 24-hour no-trespass order. After the arrest, Mayor Hansen addressed the remaining audience members and instructed them to "go do your activism somewhere where somebody cares" rather than at city council meetings. The criminal complaint filed against Petersen explicitly stated he was arrested for "speaking negatively towards the Mayor of Newton and the Police Chief."
Prosecutors with the Jasper County Attorney's Office declined to pursue criminal charges against Petersen. During a subsequent meeting with city officials including Mayor Hansen and Chief Burdess, the county prosecutor explained that the Jasper County Board of Supervisors wished to avoid the media attention surrounding Petersen's arrests. The prosecutor instead suggested proceeding with municipal criminal charges, which would shift responsibility for prosecution to city attorneys.
The municipal prosecution arising from the first arrest proceeded to a bench trial on December 15, 2022. The City called only Chief Burdess as a witness. The trial court found Petersen not guilty, rejecting the City's argument that he was charged for his conduct—refusing to leave the meeting—rather than his speech. The court held that the Rule was unconstitutionally vague and overbroad, emphasizing that Petersen had used no profane language and had not acted in an objectively unreasonable manner.
The court further observed that it would be "difficult if not impossible for a concerned citizen to comment regarding City policies or the provision of City services without referencing to some extent an official city position." Only then did the City dismiss the charge arising from the second arrest and amend the Rule….
Petersen sued for, among other things, a First Amendment violation, and the city responded that his speech was unprotected because it was supposedly "defamation." The court disagreed:
First, Petersen's reference to an unnamed officer as a "domestic abuser" was not defamatory because it was substantially true. The record establishes that Petersen learned Officer Winters was subject to a civil no-contact order related to domestic abuse allegations. Mayor Hansen himself confirmed this fact to Petersen, characterizing it as a "civil matter between them," and the police chief was similarly aware of these allegations. This conclusion finds support in a recent decision by United States District Judge Stephen Locher, who determined that statements regarding Winters' "domestic abuse history" were "substantially true" because Winters had not disputed his ex-girlfriend's affidavit detailing instances of physical abuse….
Second, Petersen's characterization of Mayor Hansen and Chief Burdess as "fascists" represents classic political hyperbole that courts have consistently recognized as protected opinion rather than actionable defamation. The Eighth Circuit has identified "calling someone a 'fascist'" as a paradigmatic example of a statement that is "indefinite and therefore opinion." Mayor Hansen's own deposition testimony confirms the term's inherently subjective nature. When asked to define "fascist," he described it as "somebody that has no respect for life, would kill, harm, demean somebody, don't care about their human values, any of that"—a rambling response that only underscores the impossibility of objective verification.
Third, the record reveals viewpoint discrimination. At the same October 3 meeting where Petersen was arrested, other speakers made statements about the rental inspector that Hansen himself characterized as "totally false" and "wrong"—yet they faced no enforcement. These comments demonstrate that the Rule operated to silence criticism of the police while permitting equally pointed criticism of others.
Mayor Hansen's deposition testimony reveals the troubling subjectivity of his enforcement approach. When pressed on why accusations against the rental inspector did not violate the Rule, he offered shifting explanations: the speaker was a "very good friend" who had called him beforehand; the criticism pertained to a program rather than an individual; the statements were merely "opinion." When Petersen criticized the police department, however, Hansen immediately characterized the statements as "verifiable" and "false" warranting enforcement action.
Most revealing is the mayor's own admission that praising the police department would, "of course," not violate the Rule. Criticism was restricted; praise was welcomed. That is quintessential viewpoint discrimination.
The Constitution does not permit government officials to silence criticism under the guise of preventing defamation…. The record demonstrates that the Rule was enforced against Petersen not because his speech was actually defamatory, but because it criticized government officials in a manner they found objectionable….
For these reasons, the Court concludes that Petersen's statements at both city council meetings constituted protected political speech rather than defamation. His comments about an officer being a "domestic abuser" were substantially true based on undisputed facts in the record, and his characterization of officials as "fascists" represented constitutionally protected opinion. Defendants' attempt to justify their actions on defamation grounds fails….
Later, the court also adds, in rejecting qualified immunity:
Any reasonable official would have recognized that silencing criticism of government officials under the guise of preventing "derogatory comments" raises serious constitutional concerns. The viewpoint-discriminatory nature of the Rule was manifest from Hansen's testimony—praise was welcome, criticism was not.
I think this analysis is generally quite correct, but I should note that some judges have held that public comment policies that bar "personal attacks" are viewpoint-neutral (even though they too allow praise but not criticism). Other judges, however, have concluded that such rules are viewpoint-based, which seems dictated by Matal v. Tam, which held that exclusions of speech that "disparage[s]" any "persons" are viewpoint-based.
Patrick Jaicomo and James T. Knight II (Institute for Justice) and Gina Messamer (Parrish Kruidenier Law Firm) represent plaintiff.