by Richard Resch

Periodically, it seems the public (and especially those cops with an authoritarian bent) need a friendly reminder of this. The Eighth Circuit recently obliged.

The U.S. Court of Appeals for the Eighth Circuit affirmed a $15,001 award for damages and attorney’s fees in a lawsuit alleging an Arkansas State Trooper violated the First Amendment rights of a motorist who yelled “fuck you” at the trooper from a moving vehicle by arresting him. Thurairajah v. City of Fort Smith, 3 F.4th 1017 (8th Cir. 2021).

The Incident and Arrest

The lawsuit stemmed from a 2015 incident that involved Trooper Lagarian Cross. He was conducting a traffic stop of a van on a busy five-lane freeway. As he was doing so, Eric Thurairajah was driving about 50 feet away in the opposite direction at 35 mph when he yelled “fuck you!” out of his car window at Cross, who claimed two young children in the van “reacted” to the expletive. Of course, the cop wasn’t about to tolerate such disrespect and insolence directed at him, so naturally, he terminated any further engagement of any actual police work involving the traffic stop to pursue the foul-mouthed menace to society who had the temerity to so freely exercise his First Amendment rights by letting an agent of the government know exactly what he thought of him.

Cross eventually stopped Thurairajah and arrested him for “unreasonable or excessive noise” in violation of Ark. Code Ann. § 5-71-207(a)(2)—that is, disorderly conduct. There was clearly conduct during the episode that could rightly be characterized as “unreasonable” and “excessive,” but it wasn’t Thurairajah’s.

The Lawsuit

After spending several hours in jail, all charges were, quite predictably, dropped. Thurairajah subsequently filed a civil lawsuit for deprivation of rights under 42 U.S.C. § 1983, alleging Cross violated his First Amendment right to be free from retaliation. Cross filed a motion for summary judgment based upon qualified immunity, but the district court denied it, ruling that he violated Thurairajah’s clearly established constitutional rights.

The Eighth Circuit agreed. Thurairajah v. City of Fort Smith, 925 F.3d 979 (8th Cir. 2019). The Court ruled that Thurairajah’s colorful manner of registering his dissent with law enforcement is protected First Amendment speech, and thus, he has a constitutional right to be free from retaliation because of that speech.

First Amendment Violation

The Court explained that to prove a constitutional violation, Thurairajah must show, among other things, that he engaged in protected activity. Citing Cohen v. California, 403 U.S. 15 (1971), in which the Supreme Court held that wearing a jacket bearing the slogan “Fuck the Draft” in a courthouse full of women and children is constitutionally protected speech that the government lacks the power to punish based on the content of the speech, the Court concluded that Thurairajah’s shout is likewise protected First Amendment speech.

Qualified Immunity

For Cross to be entitled to qualified immunity (a ridiculously low bar to satisfy and getting ridiculously lower because of the Supreme Court’s increasing hostility to civil rights lawsuits against law enforcement officers—to understand just how staggeringly low the bar is, steel yourself and take a look at Corbitt v. Vickers, 929 F.3d 1304 (11th Cir. 2019)), he must not have violated “clearly established law,” i.e., no prior case law defining the established right with sufficient particularity and with functionally identical facts.

Despite the fact it’s exceptionally rare for a cop to be denied qualified immunity, Cross was denied for the simple fact that it’s been clearly established law for decades that people have a constitutionally protected right to use language that’s provocative and challenging and also to utter profanities and obscenities, even at cops.

The Supreme Court has instructed that a person can’t be punished for the “offensiveness” of the words uttered when the only conduct “is the fact of communication.” Cohen. Similarly, in Lewis v. City of New Orleans, 415 U.S. 130 (1974), the Supreme Court held that a New Orleans ordinance that made it unlawful “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” was unconstitutionally overbroad because it applied to protected speech.

The Eighth Circuit explained: “Criticism of law enforcement officers, even with profanity, is protected speech.”

Conclusion

No one would mistake Thurairajah’s two-word commentary for that of Paine, Jefferson, or Hamilton, but there’s absolutely no requirement that it must rise to those lofty heights in order to enjoy the same constitutional protection as political and social commentary that does. The majesty of the First Amendment lies in its protection of princes and paupers, the learned and uneducated, the genteel and vulgar, and the beloved and detested alike.

And finally, here’s another friendly reminder: having the right to do something is not the same as it being wise to do something. Pick your battles carefully and stay safe.  

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