Law Office of Milly Thompson
Dear San Antonio Law Enforcement:
Please Seek Training on the First Amendment
from Someone Other Than Your Chief.
My clients’ Disorderly Conduct cases were set for trial today in San Antonio Municipal court. They were charged with Disorderly Conduct for wearing motorcycle club patches showing they were in a motorcycle club. The cases were dismissed this morning. I was disappointed. Someone needed to explain the First Amendment to the officer that issued the citation. I had hoped I would get to during cross-examination. For some reason, the licensed attorney that is running the City Attorney’s Office refuses to properly explain the law to LE in SA.
The complaint against my clients stated that they committed a crime by wearing their motorcycle club patches as follows: “defendant…intentionally or knowingly made an offensive display by wearing of gang colors or paraphernalia, in a public place and the said display tended to incite an immediate breach of the peace.”
There is a lot wrong with this charge, but here are just a few of the issues:
1. The Right to Associate & Symbolically Express Association Via Clothing
Americans enjoy a freedom to associate, even with groups law enforcement may dislike. United States v. Robel, 389 U.S. 258, 269 (1967). The government may not sanction us based solely on our membership with an unpopular group. Id.;and Scales v. United States, 367 U.S. 203 (1961). The Supreme Court has long ruled against government action that imposes criminal sanction or denies rights “solely because of a citizen’s association with an unpopular organization.” Healy v. James, 408 U.S. 169, 185-86 (1972). This is true even if some members of the organization do engage in criminal activity. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 920 (1982).
Wearing motorcycle club garb is protected by the First Amendment. Sammartano v. First Judicial District Court, 303 F.3d 959 (9th Cir. 2002); Piscottano v. Murphy, 511 F.3d 247, 274 (2nd Cir. 2007).
2. The Fifth Amendment Protects Our Liberty Interest to Dress as We Please
The Fifth Amendment protects various liberty interests, including that of dress and appearance: “Regarding the existence of a liberty interest in dress and appearance…. a substantial majority of the courts considering the issue had held that such a liberty interest does exist.” Hodge v. Lynd, 88 F. Supp. 2d 1234, 1246 (D.N.M. 2000). Moreover, “[o]rdinances attempting to regulate what the general public wears, on public streets and in other public areas, have not fared well.” Hodge v. Lynd, 88 F. Supp. 2d 1234, 1243 (D.N.M. 2000) (citing DeWeese, 812 F.2d at 1369–70; see also City of Harvard v. Gaut.
3. The First Amendment Protects Our Speech, Except for “Fighting Words”
Now, I’m going to discuss the First Amendment protection for profane language directed at officers. My clients did not cuss out the cop. The reason I address cussing at cops is because even if my clients were wearing clothes that said “ACAB,” or the classic “Fuck the Police,” or any other insulting language, they still could not have been constitutionally prosecuted for it.
The rights to associate and express association are sufficient by themselves to say that this charge was unconstitutional. BUT – even if we assume that the right to associate and symbolically express association didn’t cover my clients, the officer still should not have charged them with Disorderly Conduct for mere words.
Courts across this country have correctly applied First Amendment principles to prevent the police from criminalizing those who direct language at them, no matter how hostile and abusive the language used. In the Matter of the Welfare of SLJ, 263 N.W.2d 412 (Minn. 1978) (reversing conviction for disorderly conduct for “fuck you, pigs” to police officers); Diehl v. State, 451 A.2d 115 (Md. 1982) (conviction reversed for disorderly conduct for saying “fuck you, Gavin” to a police officer); City of Bismarck v. Schoppert, 469 N.W.2d 808 (N.D. 1991) (reversing disorderly conduct conviction for saying “fucking bitching cop,” “fuck you” three times, “fuck my ass,” and “you don’t know who you’re fucking with” to the police); LAT v. State, 650 So.2d 214 (Fla. 1995) (reversing conviction for “you fucking cops, what the fuck do you think you’re doing? You are full of bullshit. This is bullshit. This is abuse,” and more directed at police); Swann v. City of Huntsville, 455 So.2d 944, 950 (Ala. Crim. App. 1984) (“this is some shit… damn you”); Ware v. City & County of Denver, 182 Colo. 177, 511 P.2d 475 (1973) (“fuck you”); People v. Justus, 57 Ill.App.3d 164, 372 N.E.2d 1115 (1978) (hysterical yelling and screaming over parking ticket); People v. Gentry, 48 Ill. App.3d 900, 363 N.E.2d 146 (1977) (stating the defendant’s presence in a neighborhood was “none of [the officer’s] fucking business”); Cavazos v. State, 455 N.E.2d 618 (Ind. App. 1983) (“asshole”); State v. John W., 418 A.2d 1097 (ME 1980) (“hey, you fucking pig, you fuckin’ kangaroo”); and my favorite State v. Hampton, 66 Ohio App.3d 30, 583 N.E.2d 400 (1990) (“just because you’ve got a fucking badge you think you can fuck with poor people…fuck you and your gun”); and more.
I’m going to summarize the law on this, and you can read the more elaborate version below, if you like.* Simply: The police can’t arrest people for words alone. The words must be so extreme that they would cause an average person on the receiving end of words to want to physically fight and hurt the speaker. If the words are directed at a police officer, we expect police to control themselves. Words that would make a civilian want to fight the speaker cannot be criminalized if they’re directed at a cop because we hold the police to a higher standard.