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SATIRICAL MESSAGE – “I AM A . . . SUICIDE BOMBER TERRORIST” PAINTED ON HIS VAN BY MILD-MANNERED, ANTI-GOVERNMENT “NUT” WAS PROTECTED AS “FREE SPEECH” UNDER THE FIRST AMENDMENT –
In Fogel v. Collins, 531 F.3d 824 (9th Cir. 2008) (decision filed June 27, 2008), the Ninth Circuit rules that, taking into account the full context of the investigation of messages painted on a 1970 white VW van, officers did not have justification, in light of constitutional freedom of speech protection, to arrest and jail the suspect, to impound his van, or to make him paint over the van’s messages.
The Fogel Court describes the van’s decoration as follows:
The words “I AM A @#$%ING SUICIDE BOMBER COMMUNIST TERRORIST!” were painted in block letters on the back of the van above the rear window. On the rear window was painted “PULL ME OVER! PLEASE, I DARE YA[.]” Below the window in slightly smaller letters was the text “ALLAH PRAISE THE PATRIOT ACT ... @#$%ING JIHAD ON THE FIRST AMENDMENT! P.S. W.O.M.D. ON BOARD!” A small American flag was attached to the van below the lettering. The rest of the van was decorated with slogans and paintings that had no political or threatening character.
A citizen complained about the van. Law enforcement officers from a Utah town investigated. They concluded on contacting him that Fogel was a mild-mannered anti-government enthusiast, who some others in the community called an “anti-government nut.” Fogel consented to a search of the van, which the officers did, but in doing so they did not treat the van as if it actually contained a bomb. The search yielding nothing. Nonetheless, solely because of the messages on the van, the officers arrested him, took him to jail, and impounded his van, and made him paint over the messages before allowing him to retrieve the van from impound. The prosecutor declined to file charges, and Fogel sued.
The Fogel Court concludes that under either an objective (reasonable person) or a subjective (focused on Mr. Fogel) analysis, freedom of speech protects the messages on the van because no true threat was being made:
Applying the objective standard, we hold that “a reasonable person would [not] foresee that the statement [on the van] would be interpreted by those to whom [Fogel] communicates the statement as a serious expression of intent to harm or assault.” A reasonable person would expect that an observer of Fogel's van would see an old Volkswagen van covered with artwork, an American flag, and an obviously satiric or hyperbolic political message. The First Amendment and USA PATRIOT Act references are overtly political speech, and reasonable observers would be hard-pressed to believe that an actual suicide bomber would so boldly announce his presence and intentions. The remainder of the van displayed innocuous images and phrases, including some with spiritual meaning, created through the artistic endeavors of Fogel and his friends.
When we take into account the entire context of Fogel's statements on the van, it is hard to see how any reasonable observer would have believed the statements were serious expressions of an intent to cause harm.
Applying the subjective standard, we hold that Fogel did not intend his statements to threaten serious harm to anyone. In his deposition, he explained that his goal was:
to express disagreement . . . with the Patriot Act, and I wanted to display the need to express yourself and use your rights, especially when something like the Patriot Act is working to directly take those rights away and let people know that you still want those rights by exercising them. I wanted to express frustration . . . and I figured this was a safe, healthy way to do that.
Fogel also explained how he envisioned others would interpret the van:
It seemed to me impossible to construe . . . that someone was actually an Islamic extremist with any reason or desire to do harm to anyone. It seemed pretty plain to me that it's a joke and it's ironic and it's backwards, and that's just to get people to think about how backwards some of our government's reasoning is.
There is virtually no evidence that Fogel subjectively intended the speech as a true threat of serious harm. The officers noted that Fogel was “mildmannered” and did not have a threatening presence. None of the officers interpreted Fogel's words or actions as threatening. Even Fogel's purported statement in the parking lot that he intended to scare people-to scare them into thinking, or to scare them in the same way the United States government is scaring Iraqi citizens-is consistent with Fogel's contention that he intended his message to be satirical. Fogel's goal of shocking or “scaring” observers of the van into reflecting on political events is exactly the kind of “unpleasantly sharp attack[] on government and public officials” the First Amendment welcomes and protects.
[Citations omitted]
The Fogel Court goes on to conclude that the police officers were entitled to qualified immunity, however, because the law was not clearly established on the freedom of speech issue at the time they made the arrest. The Court also concludes that the police agency is not liable because no agency policy or policy-maker was involved in this case.
Result: Affirmance of U.S. District Court (Utah) dismissal order; the officers and agency are not liable for civil rights violation.
LED EDITORIAL COMMENT: The officers and agency escaped civil liability in this case, but the next time a case with similar facts comes to the courts, there may be liability. That is because the granting of qualified immunity is often a “but-don’t-do-it-again ruling.” The Ninth Circuit probably will now consider the law to be “clearly established” if a similar fact pattern comes before it.