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.

 

Comments

[David Nieporent]

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….

Reminiscent of WalMart v. Dukes, in which the plaintiffs tried to argue that vesting individual store managers with discretion about pay and promotions was a common policy that affected all class members similarly. People really need to use better judgment to stop pleading themselves out of court.

[JonFrum]

Queers do, in fact, need to be dealt with.

[bloocow2]

Care to elaborate what "dealt with" means?

[TW]

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….

It seems like there's something missing here. He twice encountered the police, they told him to fix a tail light (he did) and then later to move his vehicle (he complied) but the third time they decided to arrest him and charge him but up until then, each time he peacefully complied with their orders and they let him go without a citation. Did he do something different during the third encounter (which isn't included in the facts) or was it that they decided that the cumulative effect of all of his actions was to disrupt the meeting and decided to arrest him then?

[bloocow2]

I could imagine them being pretty annoyed at this guy who just won't take the hint. But yeah, I don't think that's a legal basis for arresting someone.

[wvattorney13]

Who gets arrested for parking across two spaces? I'll bet that in the history of this small town exactly zero other people have been taken to jail for it.

This is almost a Neives exception to an otherwise authorized arrest.

[Dr. Ed 2]

It’s worse than that. According to him, he was towing a “ cattle trailer” which well could be 40 feet long. You wanna tell one of those with a significant size truck, which will also be at least 15 feet long.

So he has a vehicle combination that is somewhere between 30 and 55 feet long. This is legal, depending on the registered gross vehicle weights of the truck and the trailer, it may require a CDL, but then he may have one — or it may come under Tennessee Farm Vehicle law.

To put this in comparison, a full-size school bus is 35 to 40 feet.

As best I can tell, this is a rural area where parking around the courthouse consists of parallel parking along the edge of the street. So when the local high school goes to visit the courthouse for some civics thing, where do they park the school bus?

Parking spaces if that marked are usually about 20 feet long, any vehicle combination longer than that inherently is gonna take up more than one. It has every legitimate right to do so.

But since when do we arrest people for illegal parking this whole thing stinks to high heaven, and I hope he appeals.

https://tennesseeconservativenews.com/crossville-man-arrested-for-protesting-pride-parade/

[ReaderY]

There is an unusual aspect to the officers’ conduct here. At first they merely told him to move. He complied and moved away. Only later, after he had complied and gone some distance away, they came back, looked for his vehicle, and arrested him for conduct that previously merely got him a warning and a “move on.” They also didn’t arrest him for the parking offense. They arrested him for disrupting a meeting.

This seems unusual. Normally, when an officer tells the driver of a vehicle to move out of an illegal spot and the vehicle moves, that’s that. It seems unusual that officers would then bother to change theie approach, come back, seek out the cehicle, and change their response from a warning to an arrest. Moreover, an arrest rather than a parking ticket for illegal parking seems very unusual.

It seems to me that if the plaintiff had sued the officers, this unusual behavior might have made the claim of discrimination plausible enough to get past dismissal, although it might not have gone much further.

But the plaintiff didn’t sue the officers. He sued the city. And the evidence of this single incident just didn’t show the city had a policy.

[Dr. Ed 2]

Assuming the quotations in the article I posted above are from him, he doesn’t strike me as someone with a legal background. And the problem is the client is limited by his attorney, who may not want to have police officers mad at him personally.