In Connecticut, U.S. District Judge Alfred V. Covello has dismissed a free speech challenge that could have sweeping implications for protests against police operations or policies. Michael Friend was arrested in 2018 after he held up a sign warning motorists “Cops Ahead.” The police were looking for distracted drivers in Stamford. Covello ruled that Friend did not have a free speech right in making such a protest. As will likely surprise few on this blog, I disagree. Covello’s decision dismisses the obvious political and social viewpoints reflected in Friend’s protest. Under this standard, a wide variety of speech could be curtailed as inimical to police operations.
The charge against Friend was eventually dropped but he was still arrested and forced to get an attorney. When the state dismissed the misdemeanor charge against him, the prosecutor told the court that Friend “actually … help[ed] the police do a better job than they anticipated because when [drivers] saw the signs, they got off their cell phones.” The ACLU of Connecticut took up his case and filed a challenge.
In his lawsuit, Friend said that Gasparino stopped him from holding the sign because he was “interfering with our police investigation.” It then alleges that Gasparino took his cellphone and explained that the seizure was to “protect [him]self from any false claims of physical abuse.” It also recounts that:
On the ride to the police station, [Officer] Deems told Mr. Friend that he attracted police attention because he was “interfering with our livelihood.”
Deems explained to Mr. Friend that the cellphone sting was operated as an overtime assignment, funded by a federal grant which would require the Stamford police to issue a certain number of tickets in order for the grant to be renewed.
By warning motorists, Deems claimed, Mr. Friend was decreasing the number of tickets that the Stamford employees could issue, and therefore decreasing their chances of earning overtime on a cellphone sting grant in the future.
Putting aside the credible case of possible police abuse, the action clearly curtailed Friend’s free speech rights.
However, in his 30-page ruling, Covello granted summary judgment against Friend in favor of Sgt. Richard Gasparino. He held that “[i]n this case, it is questionable whether Friend’s act of holding a ‘Cops Ahead’ sign a few blocks from a location in which officers were stopping distracted drivers, rises to the level of expression of an opinion related to a matter of public significance.”
I was particularly concerned with this part of the ruling:
“Even assuming that his speech was protected, however, and was content-based, the court concludes that Gasparino’s actions pass strict scrutiny. Although Friend identifies the government interest at stake as one of “generat[ing] ticket-writing opportunities,” instead, the police department’s interest was in saving lives by stopping distracted drivers and issuing citations for their behavior. More than simply writing tickets, the police operation sought to stop and cite violators in order to deter not only current behavior, but also future distracted driving and, therefore, save lives. The court concludes that this was a sufficiently ‘compelling interest.'”
All police operations could be justified as deterring unlawful conduct and protecting lives. This was not an “investigation” into a specific person but an effective roadblock looking for possible violators. Under this logic, it is hard to see how any free speech challenge could be sustained. The strict scrutiny test is designed to be difficult to satisfy. However, the court was using the general function and value of police operations to negate the claim.
We have previously seen cases involving the arresting of citizens who merely warn others of a speed trap. Despite rulings that correctly recognize such acts as free speech, the arrests continue. Covello’s analysis would be equally applicable as a basis to dismiss those challenges. Whether it is speeding or distracted driving, all of the operations could be justified as efforts to protect the public.
The ACLU should be commended for taking this case but it should now appeal in the interests of free speech.