There is an interesting free speech case emerging in Cleburne Texas where Aaron Urbanski was arrested after protesting in front of the St. Mark United Methodist Church against its Christmas event. Urbanski, 31, was screaming that Santa is not real and was arrested for criminal trespass. It was a remarkably obnoxious and disrespectful act by Urbanski and other protesters, but much will depend on where the protest was held in front of the church. If the arrests were due to the content of the protests rather than its location, a serious free speech issue could emerge. For this part, Cleburne Mayor Scott Cain simply declared “Don’t mess with Santa” — a statement that could be cited by the defendant in a first amendment challenge to his arrest.
I can only imagine the shock of parents taking their children to church only to find these odious individuals targeting their kids with such messages. The police were called and found three men demonstrating outside the church. Only Aaron Urbanski refused to leave and “continued causing a disturbance.” That is when he was charged with criminal trespass.
This could come down to location, location, location. Was Urbanski trespassing? In this way, Cain undermined the case for the city by saying that Urbanski was arrested for messing with Santa.
Notably, Urbanski was not charged with loitering or other offenses. Rather he was presumably charged under the final provision on trespass which requires that he be on private property. That could include the stairs leading to the church as opposed to the sidewalk.
No person shall loiter or stand in any public highway, street, alley, sidewalk, or crosswalk or other public way, or otherwise occupy any portion thereof within the city, in such a manner as to unreasonably annoy or molest any person thereon or as unreasonably to obstruct or interfere with the free passage of any person or vehicle.
(Ord. 2189 § 2 (part), 1-11-05)
7.74.020 Obstructing entrances.
No person shall loiter, stand, or sit in or at the entrance of any church, hall, business of the type open to the public, or place of public assemblage within the city so as to obstruct such entrance.
(Ord. 2189 § 2 (part), 1-11-05)
7.74.030 Private property.
No person shall enter or remain upon any drive-in or take-out restaurant, automobile parking lot, shopping center property or any other place open to the public without the implied or expressed consent of the owner, his agent or person in lawful possession thereof, or with knowledge that such consent has been withdrawn, in such manner as unreasonably to obstruct or interfere with the free passage of any vehicle or person. Nor shall any person drive a motor vehicle or remain in a motor vehicle on any drive-in or take-out restaurant, automobile parking lot, shopping center property or any other place open to the public without the implied or expressed consent of the owner, his agent or person in lawful possession thereof, or with knowledge that such consent has been withdrawn, so as to unreasonably annoy or molest any person thereon or as unreasonably to obstruct or interfere with the free passage of any vehicle or person.
(Ord. 2189 § 2 (part), 1-11-05)
7.74.040 Trespass by refusal to leave.
No person shall remain on any private property or business premises, after being notified by the owner or lessee or other person in charge thereof to remove therefrom.
Groups have a right to protest churches or even funerals. In 2011, the Supreme Court has ruled 8-1 in favor of the Westboro Baptist Church. Westboro is infamous for its deranged, homophobic protests at funerals of fallen U.S. troops. In an opinion by Chief Justice John Roberts, the Court refused to allow the universal disgust at Westboro’s views influence its decision. Only Justice Samuel Alito was willing to curtail free speech to punish Westboro.
The father of a fallen Marine sued the small church under claims of harassment and an intentional infliction of emotional distress. I have previously written that such lawsuits are a direct threat to free speech, though I had serious problems with the awarding of costs to the church in a prior column.
Roberts held that the distasteful message cannot influence the message: “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.” Roberts further noted that “Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
The Court in cases like New York Times v. Sullivan have long limited tort law where it would undermine the first amendment. In this case, the Court continues that line of cases — rejecting the highly subjective approach espoused by Alito in his dissent:
“Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underly- ing the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).
The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.” “Outrageousness,” however, is a highly malleable standard with “an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler, 485 U. S., at 55 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of . . . ‘vehement, caustic, and some- times unpleasan[t]’ ” expression. Bose Corp., 466 U. S., at 510 (quoting New York Times, 376 U. S., at 270). Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U. S. 312, 322 (1988) (some internal quotation marks omitted). What Westboro said, in the whole context of how and where it is entitled to “special protection” under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.”
The relevance of the decision to the Texas arrest is obvious. That brings us back to Cain’s Facebook post where he noted “While I understand folks right to protest, Cleburne loves Santa and those protesters who were naughty and broke the law when they trespassed were arrested promptly. Guess they wanted coal in their stockings to go with a court appearance.”
If they were trespassing, the arrest is unassailable but that could depend on whether Urbanski was as thoughtless about his location as he was his message.