Tag Archives: First Amendment

Constitution, Courts, James P. Goslee

High Profile Lawsuit Against Attorney General Kathleen Kane Dismissed (For Now)

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Earlier this week a federal district court judge dismissed a high-profile lawsuit against Attorney General Kathleen Kane brought by former employees.  But the legal reasoning of Judge Harvey Bartle in dismissing the claims is probably less interesting than his summary of the allegations, which provide a detailed look at an evolving political grudge match between Pennsylvania’s sitting Attorney General and a high level State prosecutor.

I have written about the ongoing legal/political battle between Attorney General Kathleen Kane and former prosecutor Frank Fina before, see http://wp.me/p6DFYU-2g.   Judge Bartle’s opinion sheds more light on the origin of this controversy and his ruling resolves, at least temporarily, some of the contentious civil claims being made against Attorney General Kane.

The lawsuit in question was brought by Fina and a few other former employees of the Attorney General’s Office.  Fina and the other plaintiffs sued Attorney General Kane claiming she retaliated against them for exercising their right to free speech and defamed them publically.  Judge Bartle summarized the factual allegations underlying Fina’s lawsuit, which more or less go as follows:

In 2012, Kathleen Kane announced her candidacy for Attorney General.  Around the time she announced her candidacy, allegations that Jerry Sandusky had been molesting children dominated the news. As part of her platform, Kane criticized the OAG’s handling of the Sandusky investigation under Tom Corbett’s leadership. Specifically, she claimed the OAG’s office both delayed charging Sandusky and failed to allocate the appropriate resources to the investigation.  As part of her campaign for Attorney General, Kane promised she would “investigate” the OAG’s handling of the Sandusky investigation. 

When Kane assumed office in January 2013, Fina (who handled the prosecution of Sandusky) was overseeing a long-running bribery investigation. As part of the investigation, Fina was utilizing an informant named Tyron Ali.  Ali had signed a cooperation agreement with the OAG’s office and, in exchange for avoiding prosecution, was recorded offering bribes to various Philadelphia officials.   According to Fina’s lawsuit, he immediately informed Kane that she could not oversee the investigation because she had a conflict of interest.  According to Fina, the investigation could potentially implicate Joshua Marrow, a friend and former campaign employee of Kane’s.

Kane disagreed with Fina and immediately suspended the investigation.  She publically claimed that the investigation run by Fina had improperly targeted minorities and, as such, was discriminatory and could not be prosecuted.  For their part, Fina and the other plaintiffs made statements critical of Kane and denying that the investigation was racially motivated or flawed.

Around the same time, Kane began her investigation into the Sandusky prosecution.  A report summarizing the inquiry into the Sandusky investigation was completed in May 2014. The same day the report was released publically, Kane made public statements claiming that Fina and the other plaintiffs improperly delayed the prosecution of Sandusky and, as a consequence, Sandusky had an opportunity to molest two additional minors.   In response, Fina held a press conference where he maintained that Kane’s investigation was a sham and the report was false. 

Fina’s Complaint alleged that in response to his criticisms, Kane launched a retaliatory conspiracy to besmirch his record.  Fina claimed that Kane illegally leaked confidential grand jury records from a 2009 grand jury investigation into the former head of the Philadelphia chapter of the NAACP, J. Whyatt Mondesire.  That grand jury investigation ended without indictment.  Kane believed the grand jury records she leaked proved that it was Fina’s misconduct that resulted in the failed grand jury investigation.  The grand jury materials were turned over to Daily News Reported, Christopher Brennan.  Brennan, in turn, used the material to write a story accusing Fina of impeding and improperly terminating the investigation into Mondesire.   

The problem with leaking confidential grand jury information is that it is illegal. When Fina learned of the leak, he reported it to the Supervising Judge of the grand jury.  Fina was then called as a witness into a grand jury investigation into the leak.  Before he could testify, however, he was confronted by one of Kane’s employees who, allegedly, attempted to physically intimidate him.

Kane was criminally charged with leaking the grand jury information and is awaiting trial.  However, according to Fina’s Complaint, Kane further retaliated against him by kicking off the porn-gate controversy http://wp.me/p6DFYU-2g.  In short, according to the Complaint, Kane tipped off reporters that Fina had received pornographic and otherwise inappropriate emails on his work computer. Fina’s Complaint alleged that Kane “selectively” released a portion of emails to emphasize his role in the scandal. 

According to the Complaint, Kane also appeared on CNN and suggested that she had uncovered emails to and from state employees that were pornographic, racist and misogynistic. During the interview she suggested that some of the emails contained child pornography, an allegation her office later retracted.

Fina and his fellow plaintiffs alleged that Kane’s conduct in: (1) criticizing the bribery investigation as racially motivated; (2) leaking grand jury material; (3) releasing allegedly improper emails was done in retaliation for their public criticisms of Kane’s performance. According to Fina and the other plaintiffs, this retaliation was illegal and violated their First Amendment rights.  Fina and the other plaintiffs also brought claims under state law for defamation.

Judge Bartle dismissed all of the Section 1983 (First Amendment) claims because Kane’s alleged retaliatory conduct was not significant enough to give rise to a lawsuit.  For a public official to be held accountable for retaliating against an employee exercising rights protected by the First Amendment, the retaliation must involve a “threat, coercion, or intimidation intimating that punishment, sanction, or adverse regulatory action will be immediately followed.”  In this case, according to Judge Bartle, Kane’s criticisms of Fina did not involve threats of sanction or punishment.  Rather, according to Judge Bartle:

“Fina was not terminated, demoted, disciplined, or subjected to any other adverse employment action as a result of his criticisms of Kane. Instead, he merely bore the effects of a generalized critique of an investigation in which he took part under a former Attorney General.”

Judge Bartle found plaintiffs’ claim that Kane retaliated against them by releasing emails containing inappropriate and pornographic material absurd, holding that “it would defy logic to conclude that Kane violated the constitutional rights of plaintiffs by bringing to light their use of state-owned computers and email systems to exchange pornography.”

Judge Bartle also dismissed the plaintiffs’ claims for defamation, but without prejudice.  Having dismissed all of the federal claims for retaliation, Judge Bartle declined to retain jurisdiction over plaintiffs’ claims for defamation.  Those claims, presumably, will be brought in state court.

Acknowledging the political back story to the lawsuit, Judge Bartle concluded his opinion by noting as follows:

“In essence, the [plaintiffs’ Complaint] details a long-standing political battle between the Attorney General of Pennsylvania and former high-ranking state officials who served in the administration of her adversaries.  The battle has been hard fought and is not pretty.  Each party, however, has exercised his or her rights under the First Amendment, and there has been alleged no illegal retaliation giving rise to a claim under Section 1983.”

James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/

 

Credit: Darastar, Everystockphoto.com

Constitution, Courts, James P. Goslee, Uncategorized

Think the First Amendment Applies in Philadelphia? Only if You Know the “Magic Words”

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Free Speech – It’s More Than Just Words

The right to speak freely is the right to live freely.  It is a fundamental aspect of liberty.  Of all the rights protected by the Constitution, freedom of speech is generally regarded as the most powerful guard against oppression.  And for good reason. The right to express thoughts, ideas and concepts without fear of repression or reprisal is quintessential to self-determination and a bedrock principle of democracy.  But it is even more than that.  It is part of our national identity as Americans.  We are free people.  That means, above everything, we can speak freely.

You would think then, that freedom of speech and expression is not a contingent right. You would think that there are no prerequisites or hoops to jump through before we can speak our mind.  It’s not like we have to tell the government we are “opting into” the First Amendment to enjoy its privileges, right?  We don’t need to tell the government we intend to exercise our First Amendment right before we express ourselves, right?  The First Amendment applies automatically, right?????  Well, until last week, you would be correct.  But according to one federal district court judge in Philadelphia, we are all sadly mistaken.

Before discussing Judge Mark Kearney’s remarkable decision last week in Fields v. City of Philadelphia, et. al., it would be helpful to put the First Amendment in context.  The actual text of the First Amendment dealing with speech is pretty short, but its interpretation and application is incredibly broad.  The First Amendment itself states:

“Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Like I said, the text is pretty short. But over the past 200 plus years, Courts interpreting the First Amendment have applied it very broadly.  Which makes sense, because the First Amendment was not intended to apply only to verbal “speech.”  We don’t just communicate through words after all. For instance, shaking your head side-to-side is just as effective as saying the word “no.”  Likewise, whether words are used or not, artwork and artistic performance are quintessential mediums of expression and enjoy the same First Amendment privilege as actual speech.

The point here is that “freedom of speech” does not just apply to speech, but to actions that can reasonable be considered expressive (e.g., shaking your head, pointing a finger, dancing, even remaining silent).  And there is no itemized list of non-verbal communications that can be considered “speech.”  Judges are often tasked with the job of determining when certain non-verbal conduct constitutes expression for purposes of the First Amendment.

Is Videotaping Police Officers Protected by the First Amendment?

Over the past few years, one novel form of non-verbal conduct that has been considered a protected form of expression is citizens taking photographs or video footage of police officers.  This is considered a “novel” form of speech because it really didn’t become a thing until the recent advent of smart phones with built in cameras.  But today, especially with recent controversies involving allegations of police brutality and misconduct, it has become rather common practice for citizens to video tape and photograph police officers.  This is especially true when citizens, right or wrong, are concerned about the conduct of officers making arrests.

Why is recording police in the field considered protected speech? Because, again, the freedom of speech does not just apply to speech.  In the context of recording police officers, there are two important interests at stake for purposes of the First Amendment.  First, the act of recording police officers in action can be considered “expressive conduct” because it can imply criticism or protest of the police action. Moreover, the art of taking photographs (or shooting film) is inherently artistic and requires artistic judgment (ask any professional photographer).  Even more importantly, recording police officers is considered “news gathering” and historically the right of journalist to record what they believe to be newsworthy footage has been afforded First Amendment protection.  The idea being that photographing and/or recording the actions of government officials promotes discussion of government affairs.

Virtually every court that has considered the issue of recording police officers has concluded that it is protected by the First Amendment.  The list includes federal courts of appeal in the First, Fourth, Ninth and Eleventh Circuits.  The First Circuit addressed this issue way back in 2011 and was pretty firm in deciding that the First Amendment protected citizens filming on-duty police officers. In Glick v. Cunniffe, the First Circuit explained its rational as follows:

It is firmly established that the First Amendment’s [reach] extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to gathering and dissemination of information.  . . . An important corollary to this interest in protecting the stock of public information is that ‘there is an undoubted right to gather news ‘from any source by means within the law. . . . The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities fits comfortably within these principles. Gathering information about government officials in a form that can be readily disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of government affairs.’

Fields v. City of Philadelphia

Now, with this background in place, let’s discuss Judge Kearney’s recent decision in Fields v. City of Philadelphia.  The Fields case is actually two similar (companion) cases involving the same issue – does the First Amendment protect citizens filming on-duty police officers?  Judge Kearney concluded that, based on the factual circumstances of the cases before him, it did not.  It’s not so much Judge Kearny’s conclusion that the First Amendment did not apply to the plaintiffs in Fields (which is inconsistent with virtually every other federal decision on the issue) that is troubling.  Rather, it is how he rationalized his decision.

In 2013, Richard Fields was a student at Temple University in Philadelphia.  Allegedly, he was walking down the street and saw about 20 officers standing outside of a house party.  Fields thought it was an interesting scene – seeing so many officers outside a house party – and thought it would make a good picture.  So he took one.  At that point, one of the officer on the scene approached Fields and allegedly stated “do you like taking pictures of grown men” and insisted Fields “move along.”  For his part, Fields didn’t particularly enjoy photographing grown men, and, quite appropriately, declined the officer’s invitation to “move along.”  It is a free country after all! At which point he was arrested and cited for “Obstructing Highways and Other Public Passages.”  The officer also took Fields’ phone and began looking through the photos, but did not delete them.

Not to be outdone by Fields, in 2012 Amanda Geraci attended a public protest against hydraulic fracking outside the Pennsylvania Convention Center.  At some point during the protest, one of the protesters was being arrested.  Geraci took out her phone and began recording the arrest.  According to Geraci, she was “attacked” by an officer who restrained her and prevented her from recording the arrest.  She was not arrested or cited.

Both Fields and Geraci sued the City of Philadelphia.  Both alleged that the Philadelphia Police violated their civil rights and, specifically, the First Amendment.  Both suits came before Federal District Court Judge Mark Kearney.

At the close of discovery, the City filed Motions for Summary Judgment against both plaintiffs, contending that there is no general First Amendment protection for citizens recording on-duty police officers.  As Judge Kearney saw it, the square issue for him to decide was “whether photographing or filming police . . . without challenging the police is expressive conduct protected by the First Amendment.”

Now, for legal observers this case seemed like a slam dunk for the plaintiffs.  As noted above, the issue had already been decided by a number of appellate courts and everyone seems to agree the First Amendment applies.  But Judge Kearney saw things a bit differently and rejected the plaintiffs’ First Amendment claims.  The decision itself is almost certainly wrong, but that’s not the real issue.  The real issue is the legal reasoning Judge Kearney used to reach his conclusion.  In Judge Kearney’s opinion, the First Amendment only protects citizens recording on-duty officers if they first explain to the officers why they are recording them.

According to Judge Kearney,if you are going to photograph the police you need to tell them why you are taking the photograph. The act of photographing or recording alone is not “expressive conduct.”  More specifically, before the First Amendment protections apply, Judge Kearney would require citizens to explain that they are recording police (1) out of protest or (2) because they are critical of the police officers conduct. In other words, if you live in Philadelphia and are interested in the fundamental protections guaranteed by the First Amendment, you literally need to say so.

In theory, Judge Kearney’s decision is difficult to reconcile with . . . well…the whole concept that the First Amendment is a fundamental, inalienable right.  But the real, practical problem (and one I don’t think the Judge intended) is that the decision in Fields makes the First Amendment contingent; It only applies if a citizen can explain to a police officer why it applies. That cannot be the law.

Why not?  Well, let’s have some fun with this. With the recent passing of Justice Scalia, the Supreme Court lost its lone strict constructionist.  From a strict constructionist’s perspective, nowhere in the First Amendment does it say that the right to free speech is dependent upon a citizen’s ability to explain why the First Amendment should apply.  The Constitution does not put the burden on citizens to invoke guaranteed rights.  If it did, those rights would not be guaranteed, they would be contingent.

Another practical problem with the Fields approach is that it assumes (and really requires) that (1) all citizens know their Constitutional rights and (2) understand that to invoke those rights when filming police officers, they need to utter magic words protesting or criticizing the police (god help anyone unable to speak or with laryngitis!).  With respect to uttering words of protest or criticism towards police, if anything grafting such an arbitrary prerequisite onto the First Amendment would only serve to inflame or increase tensions between on-duty officers and the citizens recording them.  It really doesn’t make much sense.

To be fair, the line between traditional conduct (not protected by the First Amendment) and expressive conduct (protected by the First Amendment) is not always clear.  And whether conduct can be considered “expressive” is often in the eye of the beholder. To Judge Kearney’s credit, he recognized and acknowledged that his opinion in Fields contradicted similar decisions in other Circuits. Judge Kearney was not bound by any precedent in the 3rd Circuit and had the authority and the responsibility to decide the case on the facts before him.

But at the end of the day the Fields decision was wrongly decided.  Constitutional rights are considered “guaranteed” for a reason.  The Fields decision would fundamentally change the centuries of law by putting a new burden on plaintiffs’ to explain why they are entitled to constitutional rights before those rights can be invoked.  Such a burden is, on its face, inconsistent with concepts of liberty and freedom and frankly, unworkable.

It seems inevitable that the Fields decision will be overturned by the 3rd Circuit.  But until then, if you are in Philadelphia and get the urge to take photographs of police officers, best to play it safe and yell “protest” and “I am critical of police” while taking your pictures.

James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/

Photo Credit: Kristy Pargeter, Dreamstime Stock Photos

Constitution

Writing Obscenities on a Speeding Ticket is Protected Speech Under the First Amendment

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The First Amendment to the United States Constitution does not protect all speech. But, in what is good news for Connecticut man, it does protect a citizen’s right to scrawl “F@*! YOUR SH!TTY TOWN BITCHES” on a citation in protest of a speeding ticket. Yesterday, New York Federal Judge Cathy Seibel ruled that the District Attorney for the town of Liberty in upstate New York violated William Barboza’s civil rights after the District Attorney ordered Barboza arrested and prosecuted for using obscenities in protesting a traffic ticket.

On May 4, 2012, William Barboza was driving through the town of Liberty in upstate New York. He was pulled over and given a ticket for speeding. Barboza was clearly unhappy about the ticket. Although he decided to pay the fine, on the payment form he submitted with his check Barboza wrote “F@*! YOUR SH!TTY TOWN BITCHES” (except his version was uncensored). Barboza also crossed out the word “Liberty” from the phrase “Liberty Town Courthouse” and hand wrote “Tyranny” in its place.

The authorities in Liberty were not too pleased with Mr. Barboza. His payment was rejected and he was ordered to appear in court. When Mr. Barboza appeared before a local Liberty judge he was lectured on the use of his foul language and eventually arrested and charged with “aggravated harassment.” As it turns out, Liberty’s District Attorney Robert Zangla ordered Barboza’s arrest.

About a year after his arrest, the criminal charges against Barboza were dropped. The judge dismissing the case against Barboza wrote that “No citation is necessary for this Court to determine that the language under the circumstances here, offensive as it is, is protected.”

Barboza was not content to let matters stand and he filed a civil lawsuit in federal court against both the town of Liberty and Robert Zangla for violating his Constitutional rights under the color of state law.

Yesterday, Judge Seibel of the Southern District of New York ruled that Zangla is liable for damages for impinging upon Barboza’s “clearly protected rights” under the First Amendment. Judge Seibel rejected the notion that Barboza’s “speech” violated New York’s aggravated harassment law, determining that his choice of words, though “crude and offensive,” did not convey any imminent threat of harm. As for the town of Liberty, it would have to stand trial on Mr. Barboza’s claim that it failed to train its police officers on rights afforded by the First Amendment.

As noted by Judge Seibel, Mr. Barboza’s choice of words was clearly meant to be offensive and insulting. That said, if the First Amendment provides any protection at all, it must protect a citizen’s right to protest and criticize the actions of his government. Otherwise, what is the point? Insulting a town in response to a speeding ticket may be immature, but it is a form of protest and just the sort of speech the First Amendment was intended to protect.