My client, Wendell Marcum, was arrested in his own front yard by deputies with the Brooke County Sherriff’s Department, for cursing during his interaction with them about a dog complaint. Yesterday we filed a federal civil rights lawsuit in the Wheeling Division of the Northern District of West Virginia, alleging multiple violations of the Fourth Amendment, as well as the First Amendment. Can the police perform a warrantless arrest of a man standing in his own front yard, for cursing and asking them to leave his property?
The law is clearly established that an individual has a First Amendment right to express profanity during an interaction with law enforcement. SeeCohen v. California, 403 U.S. 15 (1972); see also Lewis v. City of New Orleans, 415 U.S. 130 (1974) (The U.S. Supreme Court reversed a conviction under a Louisiana statute that had provided that “It shall be unlawful and a breach of the peace for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.”).
The Supreme Court held in Payton v. New York, 445 U.S. 573 (1980) that, “absent exigent circumstances, an arrest in the home or curtilage area around the home must be accomplished by means of an arrest warrant….” In Rogers v. Pendleton, 249 F.3d 279 (4th Cir. 2001), the Fourth Circuit held that police officers must have probable cause plus either a warrant, or exigent circumstances, to perform a search or seizure within the curtilage of a person’s home, and that if asked to leave, officers are required to leave and seek a warrant.
Supreme Court jurisprudence extends heightened Fourth Amendment protections beyond just the interior of the home itself, but also to the “curtilage,” which is the “land immediately surrounding and associated with the home,” because the curtilage is “considered part of the home itself for Fourth Amendment purposes.” Oliver v. United States, 466 U.S. 170, 180 (1984). The Fourth Circuit has made clear that a warrantless search of curtilage is presumed to be unreasonable. Covey v. Assessor of Ohio Cnty., 777 F.3d 186 (4th Cir. 2015).
WV law creates the possibility for a criminal charge (disorderly conduct) due to a subject’s expression of profanity where: (1) The person is in a “public place” and where he (2) Disturbs the peace of others by “violent, profane, indecent or boisterous conduct or language; and (3) is requested to desist by a law enforcement officer and doesn’t. The West Virginia Supreme Court held in 2015 that the word “others” in W. Va. Code Section 61-6-1b (“disorderly conduct”) does not include law enforcement officers, but rather than some other third party must be present and actually offended by the subject’s conduct, in order to commit the criminal offense of “disorderly conduct.” Maston v. Wagner, 781 S.E.2d 936 (W. Va. 2015).
I often get the question, can public officials block me or delete my messages on social media? Isn’t that a First Amendment violation? Well, some more West Virginia news today: the Fayette County WV Sheriff’s Department has just deleted its Facebook page following negative comments they’ve received following a local incident. Here’s what the sheriff said about why he did it:
“Sorry, but I’m getting bashed and getting messages. People are just so rude and unfair….”
He said they would just delete the negative comments, but they did that once before and got sued, so the only option is to delete the page.
“We deleted comments before and got in trouble for that,” he said.
Why is the public so upset at this sheriff’s department? And what is the law on this? Can an official government social media page block you or delete your comments?
The WV ACLU has previously been involved with this issue. They actually sent a letter to the members of the WV legislature about this, attempting to warn legislators from violating First Amendment rights on social media.
So here’s the basic law. The First Amendment protects the right to criticize public officials – period. N.Y. Times v. Sullivan. But it’s not limited to newspapers. The SCOTUS has referred to social media as a “modern public square.” Packingham v. North Carolina.
When the government provides a forum for speech, such as a Facebook page, or a Youtube channel, the government actor may not exclude certain speech or actors from that forum on the basis of their viewpoints.
In 2019, the Fourth Circuit, which is applicable here in West Virginia, held that an elected official’s Facebook page on which she discussed upcoming events and community issues constituted a “public forum,” and that the official engaged in unconstitutional viewpoint discrimination when she banned a constituent from her Facebook page. That was Davison v. Randall. The Court found that the official acted under color of law when she banned the constituent because she treated the Facebook page as a “tool of governance.”
Similarly, I once sued a notorious WV state senator for an under color of law civil rights violation due to a rant about a constituent on his Facebook page. I’ll link that video if you want to watch it.
Thus, it’s now settled case law in the Fourth Circuit that a constituent’s constitutional rights extend to comments made on a public official’s social media page. An official may not block protected speech on an account dedicated to their official duties. Officials may, however, delete speech that is not considered protected under the Constitution, such as speech that makes a true and immediate threat to another person, incites others to imminently violate the law, or contains obscene language, as narrowly defined by the SCOTUS in Miller v. California.
This is not limited to social media accounts that are officially noted or categorized as an “official” page of a public official. This can also extend to a public official’s personal social media accounts, if that account is used to discuss public matters or for other public purposes. This is what happened in my WV State Senate case. The courts will look at the content, not just the title.
Here, given the fact that the Fayette County Sheriff’s Department’s Facebook page is (or rather “was”) both in title and substance, and official account, there is no question that they could not delete comments and posters based on their viewpoints. At least not unless they contained speech that is not protected, such as threats or the narrow types of obscenities, which mind you, as far as police go, as I’ve discussed in prior videos, “F the police” has been found to be protected speech.
So yes, if a law enforcement agency does not want to have their feelings hurt, or is upset by comments they’re receiving, they can delete the page. But they cannot delete viewpoints.
On August 25, 2019 in Worcester, Massachusetts, police officers arrived outside Cornerstone Baptist Church. They were there attempting to retrieve a child after receiving a report of a custody dispute involving the granddaughter of the church’s pastor, Joseph Rizzuti, Sr. Officers arrived at the church to retrieve the child after the child’s father alleged that the mother had failed to return the child following a visit. Officers wrote in their reports that churchgoers and family members kept interfering, refused orders by police and resisted arrest. The body cam footage shows what happened. The church’s pastor, Joseph Rizzuti, Sr., stands outside the church, telling his daughter to leave. Worcester Police Sgt. Michael Cappabianca, Jr., walks over to him.
Is there a First Amendment right to call a police officer a “tyrant?” Yes. Does it matter whether he’s actually a tyrant or not? No. Does it matter whether you’re a pastor standing in front of your church or a homeless guy with a cardboard sign? No.
Jeff Gray, the “Godfather” of First Amendment auditors on Youtube, this week stopped in a couple different small towns here in West Virginia, publishing two videos of his encounters. Jeff is a great guy. If you’re not familiar with him, he has a sort of raggedy cardboard sign he holds up that says “God Bless the Homeless Vets.” Then he goes to some public place and just says, “God Bless the Homeless Vets.” He’s super polite and respectful. People see the sign and they react however they’re going to react. Thus we see protected First Amendment activity, occurring in a traditional public forum, and then we see how our government servants end up reacting to that activity.
Jeff stopped in Chesapeake, West Virginia, where he was nearly trespassed off public property by a police officer, ironically standing in front of a veteran’s memorial. But for the most part, that one had a positive ending and overall experience. I encourage you to go watch that video.
Then, Jeff went to Mount Hope, West Virginia. When Jeff told me he was coming through West Virginia, asking where he should go, I told him about Mount Hope, where I exposed the fact that they had this police officer who was essentially terrorizing motorists on a nearby four lane highway. So apparently that’s where he chose to go, and you can watch the full video on his channel about just what happened. But here’s a few snippets. As Jeff explains in his videos, panhandling is a constitutionally protected activity. Here’s Jeff’s Mount Hope video:
Since government employees apparently have a difficult time grasping this concept, let me explain panhandling, as it relates to the First Amendment.
First of all, a municipality cannot just prohibit panhandling within its jurisdiction. A town cannot just decide that the First Amendment doesn’t apply within its borders. Theoretically, though they would likely be inviting litigation, a town could impose certain reasonable time, place and manner restrictions on panhandling. They would have to establish some legitimate content-neutral public safety reason for doing so, and then provide available alternatives that are still adequate. Traditional public forums such as parks, sidewalks, etc., could not be completely foreclosed from the activity.
Panhandling, or “begging” is protected by the First Amendment. The Supreme Court has held that the solicitation of “charitable contributions” is protected speech. Riley v. Nat’l Fed’n of the Blind of N.C., 487 U.S. 781, 789, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). The Fourth Circuit has cited a sister circuit recognizing that, “We see little difference between those who solicit for organized charities and those who solicit for themselves in regard to the message conveyed. The former are communicating the needs of others while the latter are communicating their personal needs. Both solicit the charity of others. The distinction is not significant for First Amendment purposes.” Loper v. New York City Police Dep’t, 999 F.2d 699, 704 (2d Cir.1993); cited by Clatterbuck v. City of Charlottesville, 708 F.3d 549 (4th Cir. 2013) (“We agree that begging is communicative activity within the protection of the First Amendment.”).
The location of this activity is extremely relevant to its protections. Places such as parks, streets, and sidewalks fall into “the category of public property traditionally held open to the public for expressive activity.” Indeed, the Supreme Court has repeatedly referred to public streets and sidewalks as “the archetype of a traditional public forum.” (Snyder v. Phelps 2011). If a municipality seeks to regulate protected speech in a traditional public forum, they may impose reasonable content-neutral time, place, and manner restrictions that are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). If the regulation is content-based however, the courts apply strict scrutiny. Under strict scrutiny, a regulation will be upheld “only if it is the least restrictive means available to further a compelling government interest.”
Thus step one is determining whether strict scrutiny applies, i.e., whether the regulation is content-based. If not, then intermediate scrutiny applies. The government’s restriction of speech is content-neutral if it is “ ‘justified without reference to the content … of the regulated speech.’ ” (Christian Legal Soc’y v. Martinez 2010). On the other hand, a restriction is content-based if it was “adopted … because of disagreement with the message [the speech] conveys.” “The government’s purpose is the controlling consideration.”
Content-neutral time, place, and manner regulations of speech in traditional public forums are subject to intermediate scrutiny—that is, the restrictions must be “narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.” A content-neutral regulation is narrowly tailored if it does not “burden substantially more speech than is necessary to further the government’s legitimate interests.”
In Reynolds v. Middleton, 779 F.3d 222 (4th Cir. 2015), the 4th Circuit evaluated a Henrico County, Virginia ordinance that banned panhandling and several other forms of solicitation on all county highways. The Court established several evidentiary standards for the government to meet to satisfy intermediate scrutiny for regulating First Amendment activity such as panhandling.
The Court requires the government to “present actual evidence supporting its assertion that a speech restriction does not burden substantially more speech than necessary.” Additionally, they have to prove that they actually tried other methods to address the government interest the regulation is designed to address, i.e., public safety concerns, flow of traffic, etc. If “available alternatives” are provided by the government, they need not be the speaker’s first or best choice, or provide the same audience or impact for the speech. But they must be adequate. If the speech is panhanding, the individual cannot be required to do so from a place where there is no target audience. If the speech is handing out leaflets, the speaker cannot be removed to only a spot where there is nobody to hand leaflets.
In short, someone engaging in protected speech generally cannot be subjected to disparate treatment based on the content of their speech whatsoever, and need only be subjected to regulation for legitimate content-neutral reasons only so long as the regulations are minor logistical restrictions, leaving adequate opportunity to continue to express the protected speech.
Therefore, a municipality cannot just prohibit panhandling within its jurisdiction. A town cannot just decide that the First Amendment doesn’t apply within its borders. Theoretically, though they would likely be inviting litigation, a town could impose certain reasonable time, place and manner restrictions on panhandling. They would have to establish some legitimate content-neutral public safety reason for doing so, and then provide available alternatives that are still adequate. Traditional public forums such as parks, sidewalks, etc., could not be completely foreclosed from the activity. Certain key high-traffic areas or spots could possibly satisfy this test. Certain key time restrictions could possibly satisfy the test. But just an outright ban within a town of all panhandling? Absolutely not. That would violate the First Amendment just as much as a ban on all protected speech within city limits.
I want to expand on the legal issues presented in yesterday’s video a little more. Yesterday I posted a video on the issue of warning fellow motorists about a speed trap via flashing the lights on your car. If that is protected speech, and as a result of that protected speech, you get pulled over, harassed, arrested, or so on, at that point you may have not just a Fourth Amendment violation, but also a First Amendment violation. More specifically, the cause of action in federal court is called First Amendment Retaliation. It’s a violation of your First Amendment rights to suffer retaliation as a consequence of exercising your rights. This area of the law can be extremely murky. But it can also be straightforward. Like everything else in federal constitutional law, it’s highly fact-dependent.
This can be illustrated by a case I litigated, which pre-dated my Youtube channel, so you won’t find it there – at least before now. Imagine that a private citizen, riding in his work delivery truck, through the West Virginia countryside, sees a vehicle come barreling around him on a stretch of road with a double yellow line, going into a curve. This is filmed by the citizen with his cell phone. He recognizes the vehicle as that of his state senator. He then posts the video to social media, showing and denouncing the senator’s actions to his social media friends. But the senator has his own social media following, which is exponentially larger. In response to the citizen’s video, that senator with a large social media following goes on a rant against the citizen, calling him names, and also then identifying his place of employment – doxxing him, essentially. But he didn’t stop there.
Large numbers of § 1983 complaints allege free speech retaliation claims. These claims frequently give rise to difficult legal issues and sharply contested factual issues. The majority of these claims are asserted by present and former public employees. First Amendment retaliation claims are also asserted by government contractors, individuals subject to criminal prosecution, prisoners, and landowners, among others.
As a general matter, public officials may not respond to “constitutionally protected activity with conduct or speech that would chill or adversely affect [t]his protected activity.” Balt. Sun Co. v. Ehrlich , 437 F.3d 410, 416 (4th Cir. 2006). That is so “even if the act, when taken for different reasons, would have been proper.” ACLU of Md., Inc. v. Wicomico Cty ., 999 F.2d 780, 785 (4th Cir. 1993).
To succeed on a First Amendment retaliation claim, a plaintiff must show: “(1) [the] speech was protected, (2) the alleged retaliatory action adversely affected [the] protected speech, and (3) a causal relationship [existed] between the protected speech and the retaliation.” Raub v. Campbell , 785 F.3d 876, 885 (4th Cir. 2015).
However, a plaintiff must allege the violation of a federal right by a person acting under color of state law. Public officials can theoretically act both under color of law, as well as a private actor not under color of law. The defendant acts under color of state law if he is “a state actor or ha[s] a sufficiently close relationship with state actors such that . . . [he] is engaged in the state’s actions.” Cox v. Duke Energy Inc., 876 F.3d 625, 632 (4th Cir. 2017). Put simply, the defendant acts under color of state law when he “exercise[s] power possessed by virtue of state law and made possible only because [he] is clothed with the authority of state law.” Davison v. Randall, 912 F.3d 666, 679 (4th Cir. 2019) (internal quotation marks omitted).
“[T]here is no specific formula for defining state action under this standard.” Rather, Courts evaluate “the totality of the circumstances.” Holly v. Scott, 434 F.3d 287, 292 (4th Cir. 2006). “If a defendant’s purportedly private actions are linked to events which rose out of his official status, the nexus between the two can play a role in establishing that he acted under color of state law.” In addition, “[w]here the sole intention of a public official is to suppress speech critical of his conduct of official duties or fitness for public office, his actions are more fairly attributable to the state.”
In my case, this was the big issue. The senator’s lawyers filed a motion to dismiss. The federal court ended up denying that motion to dismiss, ordering the case to proceed. The Court pointed out that the state senator posted his response video on his official campaign Facebook page that he was using to both share information with his constituents, as well as to campaign for Congress. Thus the social media account generating the alleged retaliation was closely connected to official activities.
Using that official account and social media following, the Court concluded that an inference was supported that the state senator was using his official position to pressure my client’s employer to fire him. Moreover, the Court found a causal connection between the response video, as well as the phone call to the employer, and my client being fired. He ordered the case to proceed and a subsequent settlement ensued.
