No one files a federal complaint against someone for saying “Good morning.”
Or “Nice to see you.”
Or “Have a good day.”
If all language was like that, America’s Founders would have had no need to protect speech in the First Amendment.
Now, the U.S. Supreme Court is being asked to clarify what kind of offensive language the Constitution protects.
Can a citizen call sheriff’s department officers “arrogant,” “condescending” and “belligerent.” How about a “little state weasel”?
Lower courts in Texas have ruled that people who use such language against officials can be fined and sent to jail.
The Rutherford Institute is representing “a frustrated Scott Ogle” for sending a number of emails to the Hays County Sheriff’s Office in reaction to officers’ “inattention” to his requests.
“Ogle accused one officer of ‘[being] your typical arrogant, condescending, belligerent self who chooses to look the other way.’ Another email stated ‘[y]ou have a Constitution to uphold, son, you’re pissing on it’ and referred to a deputy as a ‘little b—-‘ and a ‘little state weasel,'” according to the Rutherford Institute, which filed a friend-of-the-court brief with the Supreme Court urging a reversal of the result.
Ogle was charged under Texas law with making “repeated electronic messages in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.”
A year in prison and a fine of $4,000 are possibilities.
Ogle’s lawyer argued that the First Amendment protects his speech.
Rutherford now is asking the Supreme Court to strike down the Texas law, arguing that “even in Ogle’s emails were in bad taste, the government must not have the power to judge and punish speech because of its judgment that the speech is rude.”
“It was Justice William O. Douglas who affirmed the right of Americans to speak softly or angrily to government officials, even if our words challenge and annoy. We need not stay docile and quiet, nor must we bow submissively to authority and speak with awe and reverence to those who represent us. That is the genius of the First Amendment,” said constitutional attorney John W. Whitehead, president of the institute.
“Nowhere in the First Amendment does it permit the government to limit speech in order to avoid causing offense, hurting someone’s feelings, safeguarding government secrets, protecting government officials, insulating judges from undue influence, discouraging bullying, penalizing hateful ideas and actions, eliminating terrorism, combatting prejudice and intolerance, and the like.”
In its filing, Rutherford contends that such laws “impermissibly abridge First Amendment rights and, left uncorrected, the decision below – as well as decisions from other courts that have upheld similar statutes – will engender confusion and unnecessarily risk criminal liability for numerous citizens.”
The brief argues such laws impose censorship, sometimes self-censorship, that is “a serious threat to our citizens’ liberty.”
While obscenity, defamation, fraud and incitement can be limited, the brief explains, the criticism of police was none of that, and “there exists no ‘freewheeling authority to declare new categories of speech outside the scope of the First Amendment.'”
The brief explains, “However distasteful these comments may be, the First Amendment embodies the axiom that public discourse is best able to flourish when state regulation of speech is minimal and clearly defined.”