Middle Finger Conviction Vacated AND Client Wins False Arrest Suit to Boot!

24 hours after blogging about a case where a Public Defender challenged a prosecution based on his client’s use of a four letter word, I have stumbled upon yet another 'middle finger episode,' which has led to a vacated verdict, a false arrest suit, and a judgment for the accused.

On April 10, 2006, David Hackbart was attempting to parallel park his car on a street in Pittsburgh when a car pulled up behind him, blocking his path. Hackbart responded by giving the driver behind him "the middle finger," and promptly heard another voice outside his car tell him, “Don’t flip him off.”

Hackbart, of course, then gave the finger to the interloper who he would soon learn was Sgt. Brian Elledge of the Pittsburgh Police Department, seated in his patrol car at the time. Law Man then issued Hackbart a citation charging him with violating Pennsylvania’s disorderly conduct statute based on Hackbart's giving the middle finger to Sgt. Elledge and the other driver.

Hackbart challenged the citation but at his preliminary hearing, a district justice found him guilty of violating the disorderly conduct statute and imposed a fine and court costs totaling $119.75. Hackbart appealed the decision and on Oct. 17, 2006, the Allegheny County District Attorney’s Office finally decided to withdraw the charges against him, and the sentence was vacated.

Enter the ACLU. They filed a federal civil rights lawsuit against the City of Pittsburgh and Sgt. Elledge on Hackbart's behalf. The complaint alleged, among other things, that the defendants violated Hackbart's rights under the First Amendment "to be free from criminal prosecution or to be retaliated against in any way for engaging in constitutionally protected speech."

He won.

Sara Rose, an ACLU staff attorney, stated that "the law is clear that using one's middle finger to express discontent or frustration is expressive conduct that is protected by the First Amendment. The City has an obligation to train its officers to respect citizens' free-speech rights."

Pittsburgh has tentatively agreed to pay $50,000 ($10,000 to Hackbart, $40,000 to the ACLU and lawyers' fees) to settle his lawsuit. As part of the settlement, the city promised to "train its officers in recognizing when they are violating someone's civil rights, including taking action against anyone who flips them off," the Pittsburgh Post-Gazette reports.

The Post-Gazette also notes that this latest blow to law enforcement's effort not to have people give them the finger is part of a growing line of such losses. In the most high-profile example, the 9th U.S. Circuit Court of Appeals ruled in Duran v. City of Douglas, AZ in 1990 that a man pulled over in Douglas for flipping off and swearing at a police officer did not break the law.

Anonymous Blogger Sued for Defamation May Be Unmasked

As readers of this blog know, I have steadily written about the unfolding laws of bloggers’ and their rights.

People that host blogs are generally protected by a section of federal statutes which shields them from liability for what others post. It allows for the free dissemination of speech in the Blogosphere. But when those postings are defamatory, a prospective litigant is not without redress. He indeed may sue the blog to disclose the IP address of the alleged defamer. Then, after acquiring the same, the aggrieved party can determine if he wants to sue the author, once tracked down.

It is therefore not surprising to see then that a Tennessee judge has ruled that a husband and wife who operate a halfway house for recovering drug abusers may unmask an anonymous blogger who allegedly defamed them. This usually requires suing the host of the blog. So they did.

The anonymous blogger accused a couple, Donald and Terry Keller Swartz of Old Hickory, Tennessee of committing arson, evading taxes and being drug addicts themselves. That is some serious defamation. They subpoenaed Google to reveal the blogger, and the blogger filed a motion to quash.

Judge Thomas Brothers ruled against the blogger:

“Internet anonymous speech is not entitled to absolute protection,” Brothers wrote in his Oct. 8 opinion (PDF posted by the Citizen Media Law Project). “The free speech of the defendant must therefore be balanced with the reputation and privacy interests of the plaintiffs.”

Brothers applied a five-step standard established in a 2001 New Jersey appellate case, Dendrite International v. Doe. It requires a reasonable attempt to notify the blogger, a reasonable time to respond, identification of allegedly defamatory statements, a substantial showing of proof, and a balancing of First Amendment interests.

Brothers said his decision may be immediately reviewed. What I can tell you is that a new era of American jurisprudence is unfolding, and it is going to require caution and a steadied jurisprudential hand to find the proper blend between free speech and wrongful abuse.

Lashes for 75 Year Old Saudi Woman

Why America is Not So Bad; Just a Reminder

By THE ASSOCIATED PRESS Published: March 10, 2009

A 75-year-old widow living in Saudi Arabia has been sentenced to 40 lashes and four months in jail for mingling with two young men who are not close relatives, her lawyer said Monday. The newspaper Al Watan said the woman, Khamisa Sawadi, met with two 24-year-old men in April after she asked them to bring five loaves of bread to her home. The two men, her nephew and his business partner, were arrested by the religious police after delivering the bread, the newspaper said. They were also sentenced to lashes and imprisonment. The verdict against Ms. Sawadi, a Syrian who was married to a Saudi, also orders her deportation after her sentence is served. Her lawyer said he would appeal. Despite what Fred Haddad may have said, the judge was not Cheryl Aleman and Sean Conway denies being of counsel.

Now if President Obama wants to do something about human rights, here is a nice start. Note the picture of lashings that used to be routine in America- TWO HUNDRED AND FIFTY YEARS AGO. The Saudis have oil. Too much has floated into their brains.

Injustice anywhere diminishes us everywhere. And yes, I read Patterns of Culture by Ruth Benedict as a freshman at Hofstra in 1967. I know cultures are ethnocentric. I know you have to respect diversity and the right of each society to set standards. You can acknowledge that it is their country and they have that power. You can admit the rights are theirs and you have no control over what they do. But you can also condemn them as neanderthal and retarded. You can refuse to condone universal human rights abuses anywhere. For all their riches and wealth, their bold buildings, and new ways, they are stuck in the past because of a religion that retards their progress.

Clearwater Fishing Banner Unfurls First Amendment in Court

Had a Florida bait and tackle shop covered up an offending fish painting with the U.S. flag, it could have avoided additional tickets under the Clearwater municipal sign ordinance, according to an ABA Journal report by columnist Martha Neil, reporting on an update of a new case involving free speech.

But covering the exterior wall mural with the text of the First Amendment of the U.S. Constitution violated Clearwater's sign rules for businesses, a city official told a federal magistrate judge in a hearing today in Tampa, reports the St. Petersburg Times.

During questioning by an American Civil Liberties Union attorney, the city planning director, Michael Delk, said the owner of the Complete Angler shop wouldn't have been ticketed if he had used the flag instead of the First Amendment to cover the fish painting. However, Delk didn't explain the reason for the distinction between the flag and the First Amendment, for ticketing purposes, the newspaper writes.

The ACLU is seeking an injunction on behalf of the shop that would bar Clearwater from citing it again under the sign ordinance until constitutional issues in the case are sorted out.

Magistrate Judge Elizabeth Jenkins, who will make a recommendation at some point to U.S. District Judge James Whittemore about how the injunction request should be handled, expressed frustration to lawyers for both sides about their "level of advocacy," the Times reports. "I just really don't feel that this case has been articulated very well," she told the attorneys.

Owner Herb Quintero and the ACLU contend that the entire sign ordinance should be struck down on constitutional grounds because it is vague and exempts holiday displays, writes the Tampa Tribune.

Attorney Leslie Dougall-Sides, who represented the city at the hearing, conceded that the holiday display exemption might be unconstitutional, the newspaper reports. If so, however, it can be severed so the rest of the sign ordinance remains in effect, she argued.

Earlier coverage:
http://browardlawblog.blogspot.com/search/label/Zoning

City Commissioners Empower Themselves to Sue Critics in Deltona

As one blogger has already written, Democracy took a bullet in Deltona, Florida this past week.

Reacting to online criticism of its elected officials, the city of Deltona, Florida has authorized city employees to file libel lawsuits at taxpayers' expense. On February 16, City commissioners voted 4-3 to pass this resolution:

'The City is to provide reimbursement and expenditures of legal fees to protect both proactively and reactively where needed from material damages, slanderous or libelous comments or claims and unsubstantiated allegations past, present and future where the Mayor feels it is needed..'

Breaking this down, this neanderthal group of commissioners has just enacted a law empowering themselves to spend public funds to become plaintiffs in libel actions if a member of the public criticizes them, if the mayor deems it necessary. What a bunch of spineless wimps. Let them start by coming after me. They have just passed an unconstitutional law trampling on the first amendment and the right to criticize public figures holding public office. How dare they? Fools on a hill, they be. The ultimate act of self-righteous, official arrogance.

Speech that criticizes public officials, whether in letters to the editor, on posters or placards- or editorial cartoons- is a cherished and fundamental value of Americans, even in Deltona. This is a city either with too much time on its hands or a group of commisssioners who are obviously incapable of taking the heat. To quote Harry Truman, then get the hell out of the kitchen. They have no business holding office and should resign at once. They have disgraced themselves and their city.

Here is an article about their assinine (most of the time, asinine is spelled with one 's'. Today, though, the city commission earned both) machinations in the Orlando Sentinel:

http://www.orlandosentinel.com/news/opinion/orl-ed20109feb20,0,1587670.story

Photograph of the Day

The famous Norman Rockwell painting, one of the most popular posters of WWII

Florida Insurance Law May Violate Free Speech

Stumbled upon this piece in a google first amendment search. Might be interesting if someone doing insurance law wanted to comment about it.

A Florida law that makes it illegal for insurance companies and agents to mention the Florida Insurance Guaranty Association may violate free speech laws. FIGA kicks in when an insurer folds to handle claims and pay up to $500,000 for certain claims.

A task force exploring how to shrink state-backed Citizens Property Insurance Corp. recently recommended repealing 2003->Ch0631->Section 65" target=new>the FIGA statute because some Citizens customers are reluctant to switch to a private insurer for fear it will fold.

"It would be helpful to smaller insurers if they could say they are backed by FIGA," said Bill Newton, executive director of the Florida Consumer Action Network. "Consumers don't understand the mechanics of the business and how a small company is required also to be able to pay claims."

Mark Riordan, a spokesman for Ormond Beach-based Security First Insurance Co., calls the statute a "heinous example of censorship."

"It certainly does seem to create constitutional issues," said Carol Jean LoCicero, a Tampa attorney who is on the board of the Florida First Amendment Foundation. There is a 1977 U.S. Supreme Court ruling that a town's ban on most signs advertising the sale of property may not impair the flow of truthful and legitimate commercial information.

Sandy Robinson, executive director of FIGA, said the statute exists so people don't choose what they consider lower quality insurers because they assume the state will back them up. Robinson said insurers should be able to provide some information about FIGA without using it as a marketing tool. She said perhaps FIGA can work with agents to develop a pamphlet for policyholders that describes FIGA's role.

My gut reaction is that it is an infringement on commercial speech and it is therefore susceptible to a legal challenge.

Signs, Signs, Everywhere a Sign

County Wants Strip Club Sign Taken Down

By Norm Kent

As I reported last week, the First Amendment Lawyers Association is meeting in New Orleans, and one of the cases they are celebrating is the victory Jamie Benjamin and Danny Aaronson won in reaffirming the legal principle that a 24/7 dorm is not necessarily a business so as to make it come within city zoning requirements. They are talented lawyers.

The key cases on point, the’ Voyeur Dorms’ cases, were won in Orlando and Tampa. The recent case was referred to as ‘Son of Voyeur Dorm’ and involved Miami zoning. So many things that seem new are a replay of what already was.

Anyway, flash forward today to Nassau and Queens County, New York; Rockaway Boulevard by JFK Airport. Nassau County has filed a law suit against a strip club in Queens, arguing that the club's risque billboards featuring a nearly naked woman are a public nuisance and should be removed.

The suit, filed Monday in State Supreme Court in Mineola, names the operators of the Platinum Club and the owner of the property, and asks that the two signs be taken down. "The impact of the offense is on the citizens of Nassau County," said Nassau County attorney Lorna Goodman. So even though the sign is not even in Nassau, she is suing on behalf of their community.

It is really too bad Ms. Goodman is not part of the First Amendment Lawyers Association. If she had been, she would have gotten the same email I did from our list serve. She would have seen that a South Carolina United States District Court Judge had just basically invalidated an identical ordinance the day before.

Goodman said the image violates a section in New York's penal code that prohibits the display of graphic images that appeal to a "prurient interest in sex." It's too sexy a sign, she says. New York City Councilman James Sanders Jr., who represents the area that contains the club, said he welcomes the suit and added that the city planned to file an amicus brief. As if that is all either New York City or Nassau County has to worry about.

Bans on commercial expression tend not to survive First Amendment scrutiny. Ordinances restricting the content of signs are more likely to fail than not. I never particularly liked the sign on West Broward Boulevard of the naked hairy guy selling carpet, but then I never asked the City of Fort Lauderdale attorney to sue to get it removed either.

Meanwhile, in South Carolina, Judge Cameron Mcgowan Currie entered the Order granting the adult nightclub an injunction against a similar sign ordinance for overbreadth. The case is Carolina Pride vs. McMaster. It is on the PACER system. The opinion outlines how the city’s ordinance fails the four pronged test for limiting commercial advertising. Someone needs to email it to the Nassau County attorney.

The same thing has been tried here, years ago, in Pompano, in Oakland Park, and other cities, usually without success. If it is a lawful business; if the sign does not provide for visual distractions which impair motorists; if it does not impede a substantial state interest; and the restriction on speech is greater than it needs to be, the ordinance is doomed to fail. It is the way of the law.

Once again we are witness to the warriors of morality waging their battles against sin. They want to impale the breadth of the first amendment upon their legislative swords. It happens in New York and it happens in Broward County. It is the way we have been.

Constitutionally protected businesses, whether they are adult clubs or rock clubs, cannot be targeted by statutes which are in effect, an attempt to destroy the businesses themselves. There is more visual eroticism on MTV than the Rockaway Boulevard sign, more sexually enticing displays at a Madonna concert.

In South Carolina Monday, a judge entered an injunction allowing the signs on I-95 to remain up pending a final hearing. The decision, though, will be heard in a Nassau County, New York, courtroom very soon, and undoubtedly, on a day as yet unknown, somewhere in Broward County. It is the way of the world.