“Cops Ahead” Sign Protected by First Amendment, at Least Given Specific Connecticut Statutory Scheme
From Friend v. Gasparino, decided yesterday by Second Circuit Judge Steven Menashi, joined by Judges Gerard Lynch and Richard Sullivan:
On April 12, 2018, Plaintiff-Appellant Michael Friend responded to a distracted-driving enforcement operation conducted by Defendant-Appellant Sergeant Richard Gasparino and the Stamford Police Department. Friend stood down the street from where the police were stationed and displayed a sign reading “Cops Ahead.” Gasparino twice confiscated Friend’s signs and ultimately arrested him for interfering with an officer under Connecticut General Statutes § 53a-167a(a)….
A First Amendment violation, the court held (among other things):
Friend’s speech would have lacked First Amendment protection if it were “integral to criminal conduct,” a category of speech that historically may be restricted. The “constitutional freedom for speech and press” does not “extend[ ] its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.” Thus, “the First Amendment is quite irrelevant if the intent of the actor and the objective meaning of the words used are so close in time and purpose to a substantive evil as to become part of the ultimate crime itself.” “In those instances, where speech becomes an integral part of the crime, a First Amendment defense is foreclosed even if the prosecution rests on words alone.” Thus, in some cases, speech that helps another person engaged in criminal activity evade detection by law enforcement may be subject to criminal penalties. See, e.g., United States v. Cassiliano (2d Cir. 1998) (affirming an obstruction-of-justice sentencing enhancement because the defendant contacted a “principal target[ ] of the government’s investigation[ ]” to “alert[ ]” him “to the investigation and discuss[ ] whether they would lie to” investigators); United States v. Arzola (6th Cir. 2013) (affirming an enhancement because a defendant alerted a co-conspirator before law enforcement executed a search warrant).
Friend’s speech does not fall within this category. Friend was not acting in coordination with lawbreakers such that he could be said to have been engaged in a conspiracy to commit violations and evade detection. Gasparino cannot identify a crime that Friend committed, let alone a crime to which
Article from Reason.com
