Anti-"Queer" Speech Is Constitutionally Protected—but Not Parked in Multiple Spaces

From Judge Waverly Crenshaw (M.D. Tenn.) Monday in Wattenbarger v. City of Crossville (M.D. Tenn.):

"Queers stay away from our children. You're ruining America." That was one of several messages Wattenbarger displayed on banners affixed to his truck and horse trailer as he drove through a pride festival in Crossville, Tennessee in June 2023. Others included "Stop Sexualizing Our Children," "What is a Woman," and "Make Noise For A Queer Free America."

Whatever one thinks of that sentiment, the First Amendment protects speech on matters of public concern. Wattenbarger had the right to express it. The question … is whether the City violated that right when it arrested Wattenbarger, not for that expression, but for parallel parking his pickup truck and horse trailer across multiple spaces in front of the courthouse where the festival was being held….

In June 2023, the City of Crossville permitted a nonprofit organization to hold a pride festival on the public square surrounding the Cumberland County courthouse. During the festival, Wattenbarger drove his pickup truck and horse trailer around the courthouse square, displaying the banners described above. Police stopped him for impeding traffic, and noted his taillights were malfunctioning, but did not issue a citation.

Wattenbarger left, repaired the taillights, affixed new banners to the trailer, and drove back. This time, he parallel parked the truck and horse trailer across multiple spaces directly in front of the courthouse where the festival was being held. Officers told him to move; he complied. Shortly after, officers stopped him again, arrested him, and charged him with disrupting a meeting. {Tenn. Code Ann. § 39-17-306(a) makes it a misdemeanor offense for a person to "substantially obstruct[ ] or interfere[ ]" with a lawful "meeting, procession, or gathering by physical action or verbal utterance."} The state later dropped the charge on its own motion….

Wattenbarger sues the City … seeking $2 million for his arrest that he contends was based on some unidentified "unwritten policy and practice" of the City to allow its officers "broad power to discriminate against speech on the basis of the content and viewpoints expressed." … [But] "[a] municipality is only liable under § 1983 if the plaintiff demonstrates that the injury suffered was a direct result of the city's official policy or custom."

Read generously, the [Complaint] does not allege an unconstitutional policy. It does not even allege that the City has a custom of selectively enforcing neutral statutes to impair free speech. It alleges that the City has an "unwritten policy and practice" that "vests" its officers with "broad power" that the officers then use "to discriminate against speech on the basis of the content and viewpoints expressed."

That allegation amounts to little more than an assertion that the City's officers have discretion to enforce the code. Of course they do. That's their job. From that unremarkable position, Wattenbarger asks the reader to infer a broader municipal custom of using enforcement authority to suppress disfavored expression, when there are no allegations that the statute here was selectively used against him. Suffice it to say, that inference is not plausible….

"As a Nation we have chosen … to protect even hurtful speech on public issues to ensure that we do not stifle public debate." Snyder v. Phelps. That principle applies to Wattenbarger with full force. But his allegations simply do not amount to a municipal custom of selectively enforcing the code to impair speech, let alone his.

Note that the plaintiff ended up suing only the city for its policies, and not the police officers for their enforcement of the policies. He thus didn't really make a selective enforcement claim (and I'm not sure that there were facts that would have supported the claim that the city would allow others to park taking up multiple parking spaces in front of the courthouse)

Daniel H. Rader IV and Randall A. York (Moore, Rader and York, P.C.) represents the City.