Federal Judge Ridiculously Says That Holding A Sign Telling People Cops Are Ahead Is Not Free Speech

I am perplexed. US district court judge Alfred Covello seems to have a very strange understanding of the 1st Amendment. As first noted in the Hartford Courant (who didn't link to the ruling) Covello has ruled that holding up a sign telling drivers that there are police ahead is not protected speech under the 1st Amendment. Because I'm not the Hartford Courant, you can read the whole ruling yourself.

First off, let's be clear: Covello is wrong, and hopefully the ACLU (which is handling this case) will appeal. Plenty of other courts have ruled otherwise, including that merely flashing your headlights to oncoming cars is a form of protected speech, which seems way less expressive than holding up a printed sign saying that police are up ahead.

To put an even finer point on this: by holding up a sign warning drivers that police are up ahead, the plaintiff in this case, Michael Friend, was actually encouraging drivers to obey the law. Which seems like a good thing. Except that the police didn't like him telling people to obey the law, because they make money from people not obeying the law. Either way, holding up a sign about what government employees are doing is quintessential protected free speech.

Covello's reasoning is... bizarre.

In this case, it is questionable whether Friend's act ofholding a Cops Ahead" sign a few blocks from a location inwhich officers were stopping distracted drivers, rises to thelevel of expression of an opinion related to a matter of publicsignificance.

Um. Really? Of course it's opinion related to a matter of public significance. The judge says that would only be the case if Friend were arguing that the police activity was improper.

Although Friend states that he objected to theway [police] were issuing tickets," no where does Friend statehow such issuance was unlawful or improper. While he makesreference to the procedure by which Gasparino stood behind acolumn" and radio[ed] ahead to his colleagues whenever healleged a driver to have been using a cell phone," he neverdiscusses how this procedure was unfair to individuals drivingby or was a deviation from normal police procedure. His signsdid not discuss a topic or express his opinion on it. The courtagrees with Gasparino that Friend's speech was of little, ifany, public concern."

That is... untethered to any basic 1st Amendment analysis. The only reason the cops were pissed off at Friend was because he was exposing what they were doing. He's obviously commenting on it (truthfully!) and letting drivers know they should obey the law. That's clearly a form of expression on a matter of public concern. Under the judge's reading of the 1st Amendment, it only protects speech over which you clearly state an opinion on, and that's not how the 1st Amendment works.

The judge goes even further in arguing that even if he used the strict scrutiny standard required for content-based restrictions, this passes. And, again, the reasoning here is bizarre and disconnected from tons of precedent regarding the 1st Amendment.

Even assuming that his speech was protected, however, andwas content-based, the court concludes that Gasparino's actionspass strict scrutiny. Although Friend identifies the governmentinterest at stake as one of generat[ing] ticket-writingopportunities," instead, the police department's interest was insaving lives by stopping distracted drivers and issuingcitations for their behavior. More than simply writing tickets,the police operation sought to stop and cite violators in orderto deter not only current behavior, but also future distracteddriving and, therefore, save lives. The court concludes thatthis was a sufficiently compelling interest." In light of thispurpose, and Friend's stated purpose to warn such violatorsbefore they were detected by police, the only way in whichGasparino could tailor punishment was to remove Friend and hissigns from the adjacent area. The operation could onlyeffectively continue without Friend's interference. The courtacknowledges that his removal defeated the purpose of whatFriend was trying to accomplish, however there was no lessrestrictive alternative,'" Fed. Election Comm'n v. Mass.Citizens for Life, Inc., 479 U.S. 238, 265 (1986), givenFriend's goal and the purpose of the police operation. HadFriend wished to complain about particular police procedures orin general about the police, he was free to do so elsewhere.

Did you get that? Because it sure looks like the court says that since the police wanted to "deter" bad behavior by drivers, it was a problem that Friend was effectively deterring that same bad behavior before the cops could profit off of it. That's... not how this works at all.

Judge Covello seeks to distinguish this from the famous and important 1st Amendment precedent at the Supreme Court in Barnicki v. Vopper by saying that that was different because the speech was exposing law-breaking, and this was just... encouraging non-law breaking. I'm at a loss to see how this even remotely matters.

Friend's cites Bartnicki v. Vopper, 532 U.S. 514 (2001),for the Court's observation that it would be quite remarkableto hold that speech by a law-abiding possessor of informationcan be suppressed in order to deter conduct by a non-law-abidingthird party." Id. at 529-30. In that case, however, thereferenced non-law-abiding third party" broke the law byproviding the information at issue. Here, the informationobtained regarding the police presence in the area, was not thebasis for the unlawful conduct at issue. Such unlawful conductin this case was a violation of Connecticut distracted drivinglaws. The Bartnicki Court also noted that there are some rareoccasions in which a law suppressing one party's speech may bejustified by an interest in deterring criminal conduct byanother, see, e.g., New York v. Ferber, 458 U.S. 747 (1982) . .. ."

But even if there are some "rare" cases where speech can be suppressed to deter criminal conduct, it's hard to see how that fits here, wherein the speech itself was seeking to deter driving violations.

The ACLU says its reviewing the decision to determine whether or not to appeal -- and I hope they do, because this is one of the worst 1st Amendment rulings I've seen in a while.

We are reviewing the decision and thinking carefully about our options," said Dan Barrett of the ACLU of Connecticut, who represented Friend. Our contemplation about the First Amendment includes the ability to protest the police on the sidewalk and publicize information about the police."