Ninth Circuit Rules Against Las Vegas Officer in Anti-Police Protest Case

There is an interesting free speech case out of Nevada this week where Ninth Circuit Judge J. Clifford Wallace (joined by Chief Judge Mary Murguia and Judge Carlos Bea) ruled that police may have violated the First Amendment rights of protesters who were arrested after writing “F**k Pigs” and “F**k the Cops” in chalk on sidewalks. Notably, in Ballentine v. Tucker, the Ninth Circuit did not view the ban on chalking to be unconstitutional but the selective enforcement of the ban.

The case came before the court after the district court granted summary judgment, on qualified immunity grounds, in favor of Las Vegas Metropolitan Police Department Detective Christopher Tucker. Tucker was sued under  42 U.S.C. § 1983 alleging, in part, that he violated the First Amendment rights of Brian Ballentine, Catalino Dazo, and Kelly Patterson when he arrested them for chalking up the anti-police statements.

The Court offered this summary:

“Plaintiffs are members of the Sunset Activist Collective, a local activist group, and are associated with CopBlock, an activist group critical of law enforcement. Since 2011, Plaintiffs have conducted protests by using chalk to write anti-police messages on the sidewalks of Las Vegas, Nevada. In response to increased chalking activity and incurred cleaning costs, the City of Las Vegas indicated to the Las Vegas Metropolitan Police Department (Metro) that it was willing to prosecute if Metro observed someone chalking the sidewalks.

On June 8, 2013, Plaintiffs were chalking the sidewalk in front of Metro’s headquarters. The messages were critical of police, included references to officer-involved shootings, and spanned approximately 320 square feet. As Sergeant Mike Wallace drove out of the Metro’s parking lot, he saw Plaintiffs chalking. He informed Plaintiffs that chalking on the sidewalk was unlawful and asked them to stop. He also indicated that Plaintiffs could continue to protest if they did so lawfully, encouraging them to use signs instead. Plaintiffs responded that chalking on the sidewalk was not illegal. When Plaintiffs refused to stop chalking, Sergeant Wallace decided to issue a citation to each plaintiff for violation of Nevada’s graffiti statute, which criminalizes conduct that “places graffiti on or otherwise defaces the public or private property, real or personal, of another, without the permission of the owner.” Nev. Rev. Stat. § 206.330.”

The panel did not find the ban unconstitutional but rather ruled that a selective, content-based enforcement of the ban could be unconstitutional.

“Plaintiffs presented objective evidence showing that they were arrested while others who chalked and did not engage in anti-police speech were not arrested. During discovery, Metro produced records indicating only two instances in which chalkers were suspected of or charged with violating Nevada’s graffiti statute. In these two instances, only one individual was cited—not arrested—for chalking on public property. There is no evidence that anyone besides the Plaintiffs has been arrested for chalking on the sidewalk. Additionally, the Plaintiffs presented evidence that other individuals chalking at the courthouse at the same time as Plaintiffs were not arrested. This is the kind of “objective evidence” required by the Nieves exception to show that a plaintiff was “arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” …

Plaintiffs’ showing of differential treatment is further supported when considering the jaywalking example provided in Nieves v. Bartlett (2019) [the relevant Supreme Court precedent -EV]. If chalking on sidewalks violates Nevada law, committing the offense in Las Vegas is much like jaywalking in that both are offenses for which ‘officers have probable cause to make arrests, but typically exercise their discretion not to do so.’ Metro records show that chalking ‘rarely results in arrest.’

Indeed, Plaintiffs’ own experiences confirm this. Between 2011 and 2013, Plaintiffs attended at least nine chalking protests. At these protests, no law enforcement officers cited the Plaintiffs or told them that chalking on the city sidewalk was illegal. On one occasion in 2012, marshals affirmatively permitted Plaintiffs to chalk messages on the sidewalk in front of the courthouse. During the July 13 and July 18 chalking incidents, no officers stopped or cited Plaintiffs. Similar to jaywalking, if chalking constitutes an offense, it is an offense for which “probable cause does little to prove or disprove the causal connection between animus and injury.” Thus, Plaintiffs have shown differential treatment of similarly situated individuals, satisfying the Nieves exception.”

Detective Tucker argued that the arrests were undertaken after “lesser options failed because Plaintiffs continued to chalk despite the June 8 citations and efforts to talk with Plaintiffs and encourage alternative protests.” The Ninth Circuit, however, noted that this is a question of summary judgment and whether the protesters should be allowed an opportunity to prove their case.

However, “[t]he possibility that other inferences could be drawn [regarding the officers’ motivations] that would provide an alternate explanation for the [officers’] actions does not entitle them to summary judgment.” This issue is for the trier of fact, not for us, to resolve. Here, the trier of fact, as the district court observed, could very well “credit” or “disbelieve” Detective Tucker’s explanations. Certainly, there is at least a genuine dispute of material fact for Plaintiffs to survive summary judgment, as the evidence does not “permit[ ] only one reasonable conclusion.” …

[T]he district court correctly concluded that a reasonable jury could find that the anti-police content of Plaintiffs’ chalkings was a substantial or motivating factor for Detective Tucker’s declarations of arrest. Detective Tucker knew that Plaintiffs were activists that were vocally critical of the police. Detective Tucker had previously engaged with Plaintiffs, challenging a chalked message that indicated no Metro officer had ever been prosecuted for murder. In the declarations of arrest, he explicitly included Plaintiffs’ association with anti-police groups and the critical content of their messages. Moreover, rather than cite Plaintiffs—which the evidence showed was an extremely rare occurrence to begin with—Detective Tucker sought arrest warrants. Coupled with the evidence of differential treatment already discussed, a reasonable jury could find that the anti-police content of Plaintiffs’ chalkings was a substantial or motivating factor for effecting the arrest.

The burden then shifts to Detective Tucker, who can prevail only by showing that the arrests would have occurred regardless of Plaintiffs’ anti-police speech. A reasonable jury could credit Detective Tucker’s explanations that he arrested Plaintiffs because the June 8 citations were not a sufficient deterrent, and that he included the content of the speech and Plaintiffs’ affiliations in the declarations of arrest to allow the judge to evaluate potential First Amendment implications.

But a reasonable jury could also find that Detective Tucker would not have sought arrest warrants in the absence of Plaintiffs’ anti-police activities. Viewing the evidence and drawing all reasonable inferences in the favor of Plaintiffs, a jury could conclude that Detective Tucker violated Plaintiffs’ First Amendment rights. Accordingly, Plaintiffs have raised a genuine dispute of material fact as to whether their constitutional right was violated and have satisfied one part of the qualified immunity inquiry.”

Detective Tucker’s argument on the failure of “lesser options” does raise an interesting defense that the protesters were the ones who escalated the case. Yet, the Ninth Circuit is right that the plaintiffs should be able to prove their case.

In order to negate immunity protections, it must be shown that Detective Tucker not only violated the First Amendment in this case but that “the unlawfulness of their conduct was clearly established at the time.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). The Ninth Circuit acknowledge that “while there need not be ‘a case directly on point, [] existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

The Ninth Circuit notes, however, that it has previously held that, even when probable cause exists, police still violate the Constitution through retaliatory or selective enforcement. See Skoog v. County of Clackamas, 469 F.3d 1221, 1235 (9th Cir. 2006) (“In this case, we define the right as the right of an individual to be free of police action motivated by retaliatory animus but for which there was probable cause.”), abrogated in part by Nieves, 139 S. Ct. 1715; Ford, 706 F.3d at 1195–96 (“[T]his Court’s 2006 decision in Skoog established that an individual has a right to be free from retaliatory police action, even if probable cause existed for that action.”).

It is not clear if Detective Tucker will now seek an en banc review or appeal to the Supreme Court.

60 thoughts on “Ninth Circuit Rules Against Las Vegas Officer in Anti-Police Protest Case”

  1. Michael P. Fay

    Michael Fay
    Born Michael Peter Fay

    May 30, 1975 (age 46)
    St. Louis, Missouri, U.S.
    Nationality American
    Occupation Casino manager
    Known for Caning in Singapore
    Criminal charge(s) Violation of the Vandalism Act
    Criminal penalty

    Six strokes of the cane
    Four months’ imprisonment
    A fine of S$3,500

    Criminal status Released
    Parents

    George Fay (father)
    Randy Chan[1] (mother)

    Michael Peter Fay (born May 30, 1975) is an American who was sentenced to six strokes of the cane in Singapore in 1994 for theft of road signs and vandalising 18 cars over a ten-day period in September 1993, which caused a temporary strain in relations between Singapore and the United States.[2] Fay pleaded guilty, but he later claimed that he was advised that such a plea would preclude caning and that his confession was false, that he never vandalized any cars, and that the only crime he committed was stealing road signs.

    Although caning is a routine court sentence in Singapore, Fay’s case garnered some controversy and was widely covered in the media in the United States, as it was believed to be the first judicial corporal punishment involving an American citizen.[3] The number of cane strokes in Fay’s sentence was ultimately reduced from six to four after United States officials requested leniency. He was caned on 5 May 1994.

    – Wiki

  2. GRAFFITI, THE VIOLATIONS MAY RESULT IN A MISDEMEANOR CHARGE. A $1,000 CASH REWARD MAY BE GIVEN FOR INFORMATION LEADING TO THE ARREST AND CONVICTION OF A GRAFFITI VANDAL.

    The City…has a reputation of attractive and well-maintained properties, which is based on the high standards demonstrated by the community and established by the City Code. Code Enforcement Officers work with residents and business owners to eliminate blight and improve the appearance and safety of the community.

    Examples of common code violations and steps you can take to prevent them are listed below:

    Landscaping and Vegetation:

    To reduce interference with vehicles, pedestrians, water drainage, or street maintenance, hedges, trees, shrubs, and plants may not overhang on sidewalks, parkways, curbs, or streets.
    Overgrown vegetation that detracts from the appearance of the home and the neighborhood is not permitted. Adequate groundcover is required to minimize erosion.
    Residents are responsible for the maintenance of parkways adjacent to their property with the exception of trees maintained by the City. Residents are expected to regularly water parkway trees and maintain grass and plants. Parkways must also be maintained free of trash and debris.

    Trash Cans and Recycling:

    Trash and recycling containers must be properly stored inside a building or out of public view.
    Trash containers should be placed at the curb in front of the home on the designated trash day. Trash cans can remain curbside for no longer than 48 hours.
    Scavenging or removing items from trash cans or recycling containers is prohibited.

    Animal Maintenance:

    Animal waste should be picked up and disposed of by the owner.
    All dogs over the age of four months within the City must be licensed.
    Dogs must be restrained by a substantial chain or leash, not exceeding six feet in length.
    A dog must be managed by a competent person, twelve years of age or older.
    Three licensed and vaccinated dogs are permitted.
    Five cats are permitted provided they are all licensed and vaccinated, all spayed/neutered, and are primarily indoor cats.
    Roosters are prohibited, except in the Farm Animal Overlay Zoning District.
    For more information regarding animal maintenance, please contact the Los Angeles County Department of Animal Care and Control at http://animalcare.lacounty.gov.

    Signs:

    There are requirements for the placement of business signs. The City Planning Department must approve all signs prior to installation.
    Signs attached to private utility poles are prohibited.
    Prohibited signs include: portable signs, temporary signs which stand freely or must be propped up against or tacked to another object to remain upright, inflatable signs, vehicle signs and hand held signs.
    In addition, signs that represent any hazard to the safety of pedestrian or vehicular traffic by interfering with visibility and effectiveness of traffic control or warning devices are prohibited.

    Graffiti:

    The City will remove graffiti from public property. Properties may not be maintained with graffiti vandalism as it may encourage further vandalism and other criminal activity. If the graffiti is not removed in a timely manner or there is continued failure to remove the graffiti, the violations may result in a misdemeanor charge. A $1,000 cash reward may be given for information leading to the arrest and conviction of a graffiti vandal.

    Prevention tips:

    Quick removal is the key to deterring future graffiti vandalism. By taking away the recognition the vandals seek, you are decreasing the chances that graffiti will return.
    Well-lit areas with timed lights or lights equipped with motion sensors can illuminate areas that vandals seek.
    Planting shrubs, vines, or trees in front of graffiti-prone walls is a long-term solution to graffiti. The greenery provides a more attractive surface.
    Fencing can eliminate accessibility to areas prone to graffiti.

    Reporting a Code Violation:

    Code violations may be reported to the Public Safety Department in person, by mail, or by telephone.

    Please provide your name, address and telephone number where we can contact you for additional information.
    Provide the address of the location of the perceived violation, including street number and name.
    Provide a brief description of your specific concern with the property.

    Your concerns will be forwarded to a Code Enforcement Officer, who will investigate the issue. If a violation is observed, the property owner or tenant will be given written notification to correct the violation within a specified time period. If the violation is not corrected, the owner or tenant could face additional enforcement action including administrative fines, or criminal or civil prosecution. To report a violation by mail, write to:

    1. But, of course!

      Ignorance of the law is no excuse.

      Just like the case of “Crazy Abe” Lincoln who should have read and understood the law and fundamental law. You can’t deny secession, Abe. You can’t impose martial law. You can’t conduct a war of aggression against a sovereign foreign nation. You can’t suspend habeas corpus in a condition of fully constitutional secession. You can’t deny freedom of speech. You can’t deny freedom of the press. You can’t smash presses and arrest your political opponents. You can’t confiscate private property. You can’t neglect the full and complete execution of your duties, including the deportation of illegal aliens, per the law, the Naturalization Act of 1802. You can’t use the U.S. Army to facilitate “fixing” the 1864 election. You can’t conduct a campaign of brutal, murderous terror against innocent civilians by ordering sadistic, butcherly “total war,” as Sherman’s “March to the Sea.”

      You can accept your inevitable capitol penalty for internecine treachery, illegal acts, constitutional treason, dictatorial tyranny and inhumane cruelty.

      Look at the United States, Abe, you “fundamentally transformed” them from a status of original intent as free America, to communist Africa.

  3. Jonathan: Violation of Nevada’s anti-graffiti statute wouldn’t seem a big priority on the list of important free speech issues. If the situation in Nevada is “an interesting free speech issue”, what about the much more serious threat to free speech in Idaho? The GOP controlled House there just passed a law to criminalize medical treatments for transgender youth. Anyone, including family members, can go to prison for life for assisting a transgender youth in seeking medical treatments that include surgery or medication to block or delay the onset of puberty. And the bill covers anyone who transports a transgender youth across state lines for gender affirming medical treatment. The American Psychiatric Association, the AMA and the American Academy of Pediatrics all oppose the Idaho legislation. The ACLU says: “Criminalizing health care for transgender adolescents is counter to science, medicine and ethics…”. Similar laws to the Idaho bill have been introduced in other GOP controlled states. In Texas, without any legal basis, GOP Gov. Abbott is calling transgender medical care “child abuse”. It is ironic that in these same states GOP politicians are passing laws to give parents veto power over what is taught in public schools ( so-called “parental rights”) but at the same time they are making parents criminals for assisting their youth in making very personal medical treatment choices. I call that hypocrisy! The right of families to decide for themselves what is appropriate medical care would seem a quintessential issue of “free speech”. But it doesn’t seem to be on your list of priorities.

    1. Dennis, you equate parents interest in what schools teach to children to the severing off a child’s penis and chopping off a young girls breasts. That you could not separate the severity of the two different actions tells us all we need to know about how you think.

  4. @Anon,

    The argument is that the officer had a previous run in… and the content of their chalking is why they were arrested, not that they were chalking. Hence the selective nature.

    The counter… the officer knew them to be previous offenders. He asked them to stop and protest in a different way. They refused and ignored him, continuing to chalk claiming their first amendment rights.

    I agree that they should have been ticketed and if they continued, then arrested.
    They couldn’t claim ignorance of the ordinance, which isn’t a defense of itself, but that they didn’t know that what they were doing was illegal.

    Which gets into the issue of officer’s discretion.
    He could have had a bad day.
    He could have said that he knew that they wouldn’t stop and continue to deface public property.
    He could admit that the content of the message is what made him decide to arrest.
    And that’s the trap.
    Their argument that the officer decided to arrest was in violation of their 1st A rights. This is where the issue gets sticky and this is why a summary judgement in favor of the cop is at issue. He decided to enforce because of the content.

    I wonder if this will go to SCOTUS…. 9th tends to get things wrong.

    -G

  5. Unfortunately, police are expected to be more angelic than the citizens. Citizens can’t take from the police what they dish out to them.

    1. Police are expected to understand the law and why being selective in its application is a problem.

      1. Citizens are supposed to follow the law and when they break it pay the penalty. The First Amendment Issue applies to the police department as a whole, not the individual policeman. Citizens, if you wish to violate the law, have it repealed or protest against the law legally.

      2. “Police are expected to understand the law…” Many times those who pass the laws and the Judges who rule on them, cannot understand the law…why is it always the police that have to be perfect.

  6. Below in prior posts the subject of banning books by the left or right was discussed I respond:

    When caught in a quagmire reckoning divergent moralities parents should have the only say. The subject of morality should be banned within the educational system until the student reaches maturity and can reconcile what is appropriate.

    As an absurd example should “Justine” by Marquis de Sada be on an approved reading list?

  7. The Court’s opinion said,

    “Additionally, the Plaintiffs presented evidence that other individuals chalking at the courthouse at the same time as Plaintiffs were not arrested. This is the kind of “objective evidence” required by the Nieves exception to show that a plaintiff was “arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”

    In my opinion, the reason the existence of probable cause should end the inquiry, even when a First Amendment issue is involved, is that many cash-strapped municipalities (and even the Attorney General’s office for which I worked) use a type of selective enforcement to make an example, hoping that other similar actors will get in line. If these entities are forced to prosecute all or none, the public’s interest will suffer the consequences.

    I do agree that under the law as interpreted by the 9th Circuit, summary judgment would not have been proper.

  8. Other citizens own the sidewalks, too. What about their right not to have their share of the sidewalks vandalized by such visual pollution?

    1. “Other citizens own the sidewalks, too. What about their right not to have their share of the sidewalks vandalized by such visual pollution?”
      **************************************
      That law is still in effect to be fairly enforced. The issue is one of SELECTIVE prosecution not prosecution

  9. “Plaintiffs presented objective evidence showing that they were arrested while others who chalked and did not engage in anti-police speech were not arrested. During discovery, Metro produced records indicating only two instances in which chalkers were suspected of or charged with violating Nevada’s graffiti statute. In these two instances, only one individual was cited—not arrested—for chalking on public property. There is no evidence that anyone besides the Plaintiffs has been arrested for chalking on the sidewalk. Additionally, the Plaintiffs presented evidence that other individuals chalking at the courthouse at the same time as Plaintiffs were not arrested. This is the kind of “objective evidence” required by the Nieves exception to show that a plaintiff was “arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” …
    *****************************
    I’d say that’s the right approach and call in letting it go to a jury to decide.

    1. Mespo, if police officers were only arresting those who were only chalking the derogatory messages and ignored the others they were essentially being targeted because of the messages they were writing. That’s a clear violation of the 1st amendment. This would have been a non-issue if everyone was either arrested or cited for chalking the sidewalk. The officers would have had the law on their side. But they had to cross the line into constitutional violation when they only arrested the ones writing the offending messages. They were retaliating against protected speech.

      1. Sevvy:
        Mespo, if police officers were only arresting those who were only chalking the derogatory messages and ignored the others they were essentially being targeted because of the messages they were writing. That’s a clear violation of the 1st amendment.
        *****************************
        Maybe but more likely equal protection of laws violation. The issuing of citations for defacement of public property isn’t a First Amendment violation. You’re being punished for the action of defacement not the content of your writing. So even writing “Police Rule; BLM sucks” on the sidewalk should get you arrested. That’s the point of the 9th Circuit ruling that by punishing some only for the content of the writings and not others then you are effectively denying those arrested and prosecuted their equal rights under the law to be treated the same for similar violations EVEN IF there is probable cause to beleive that a crime has been committed (the standard for any lawful arrest).

        If you think you have a First Amendment right to deface property, I suggest you carry some bright red paint on down to the Martin Luther King statue and do a a little “expressing.” You’ll find out the judge won’t agree with your legal interpretation and you’ll spend your weekends scrubbing, scouring and sand blasting.

        1. Mespo, the issue before the court wasn’t about defacing property. It was about being punished specifically because of the derogatory statements.

          The selectively choosing the punish the ones writing the derogatory statements and leaving the rest alone changed the focus to the statements instead of the chalking itself. If they cited or arrested everyone the cops would have been well within the law.

          1. “Mespo, the issue before the court wasn’t about defacing property. It was about being punished specifically because of the derogatory statements.

            The selectively choosing the punish the ones writing the derogatory statements and leaving the rest alone changed the focus to the statements instead of the chalking itself. If they cited or arrested everyone the cops would have been well within the law.”
            ****************************

  10. An illegal act was performed by Dazo et al. It was an act that caused harm. Dazo was told to stop and refused a lawful order. He was advised of legal alternative ways to protest. That legal way shows one fallacy of the selective treatment argument.

    Why should the police be sued for upholding the law while not being sued for not upholding the law?

    The law is in question and should either be enforced or, dare I say, canceled. Unless there is proof that the specific detective was guilty of selective treatment, I don’t think he did anything wrong. What-ifs are not proof of intent, and right or wrong citizens need to obey legal police orders and take their case to the courts or precinct later.

    1. S. Meyer,

      “ Why should the police be sued for upholding the law while not being sued for not upholding the law?

      The law is in question and should either be enforced or, dare I say, canceled. Unless there is proof that the specific detective was guilty of selective treatment, I don’t think he did anything wrong.”

      He was indeed proven that his treatment was selective. He only arrested the chalkers who were writing the derogatory messages against the police, but left alone the other chalkers.

      Police have discretion on whether to enforce a law. Because he was arresting only the ones who were writing the anti-cop messages and not the others he effectively did selectively treatment. That’s why he was successfully sued.

      1. “He was indeed proven that his treatment was selective. He only arrested the chalkers who were writing the derogatory messages against the police, but left alone the other chalkers.”

        Svelaz, maybe I missed it, but where did Turley say that the specific police officer treated an identical case differently? Other police officers may have done that, but that doesn’t have anything to do with the police officer in question.

        Once again, you have proven your lack of reading comprehension. Take note, I am not going to review what Turley wrote because your lack of reading comprehension has been established in virtually every opinion you have rendered. If I missed something (I doubt it), I leave it up to you to prove your case.

        1. S. Meyer,

          “ Svelaz, maybe I missed it, but where did Turley say that the specific police officer treated an identical case differently? Other police officers may have done that, but that doesn’t have anything to do with the police officer in question.”

          You missed it. It’s right in Turley’s column.

          “ Additionally, the Plaintiffs presented evidence that other individuals chalking at the courthouse at the same time as Plaintiffs were not arrested. This is the kind of “objective evidence” required by the Nieves exception to show that a plaintiff was “arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”

          It has everything to do with the police officer in question.

          The plaintiff PRESENTED EVIDENCE THAT OTHER INDIVIDUALS CHALKING AT THE COURTHOUSE AT THE SAME TIME WERE NOT ARRESTED.

          It seems it is YOUR comprehension skills that are seriously questionable.

          1. Again, Svelaz, you demonstrate your inability to read. Nowhere did the column say that the same policeman didn’t cite others. That was a significant part of my argument. If that were so, then the policeman would be guilty of selection. Still, first, you have to demonstrate that that same policeman under the same conditions acted differently to Dazo et al.

            Show me the proof it was the same policeman. You are unable and likely don’t even understand the question.
            ===
            “Svelaz, maybe I missed it, but where did Turley say that the specific police officer treated an identical case differently? Other police officers may have done that, but that doesn’t have anything to do with the police officer in question.”

  11. Lots of mind reading from the bench. Not surprised. Not sure at what level of legal education, training, experience, lawyers are imbued with the mind reading super powers.

    That the officer asked them to cease and desist, and only escalated when an officers legal order was ignored, is the only defense needed.

    Lesson learned, start writing a lot of nuisance tickets.

    A friend of mind did a ride around with a local beat cop one night. One of the stops was for a burnt out license plate light. Getting back in the squad car, the officer explained he wrote two to four license place light failures a month. It protected him from the charge of selective enforcement when he had a chance to pull over know drug dealers.

  12. If that is okay, then would it be okay when somebody writes something derogatory about one of the special classes of people like gays or people of color in chalk on the road or sidewalk?? Why is it okay for some to do whatever they want, but not others?? Actions have consequences. Be careful what you are okay with, because YOU won’t be happy when it doubles back and hits YOU on the ass.

  13. The issue is simple…Did the Chalkers apply chalk to a public sidewalk or street.

    If they did….they are guilty of violating that Ordinance or Statute.

    Let’s apply the Logic applied by the Court…..on January 6th…..some Capitol Police Officers opened doors and allowed Protesters into the Capitol Building…..does that undermine the arrests that have been made following the event?

  14. These asinine free speech cases Turley is focusing on seem to be a deflection on the more serious cases of free speech he should be writing on. Republican lawmakers are literally pushing laws criminalizing books because they talk about controversial issues. Specifically LGBTQ or race. Specifically from minority authors. Book bans galore are popping up in conservatives states.

    “ The Idaho House of Representative approved a bill on Monday that could fine and jail the staff of school libraries, universities, and museums if they provide “harmful” material to children, a development critics say is designed to prevent kids from having access to books about the LGBTQ+ experience.

    The measure, House Bill 666, would subject employees of schools, museums and libraries to a maximum fine of $1,000 as well as up to a year in jail. ”

    https://www.msn.com/en-us/news/us/idaho-republicans-push-bill-that-would-fine-and-jail-librarians-for-certain-books/ar-AAUQEUX

    “ Under the bill, sponsored by Republican Rep. Bruce Griffey, the state’s Textbook and Instructional Materials Quality Commission would be banned from recommending instructional materials that “promote, normalize, support, or address lesbian, gay, bi-sexual, or transgender (LGBT) issues or lifestyles”

    https://www.msn.com/en-us/news/us/tennessee-advances-bill-to-ban-textbooks-that-promote-and-normalize-lgbtqplus-lifestyles/ar-AAUQNCy

    Even Texas is taking a direct attack on academic freedom by pushing a law that revokes tenure on professors specifically of those teaching CRT.

    These are more serious freedom of speech issues. But because they are being promoted by republicans it seems Turley would rather ignore them because it would upset his conservative and Fox News readers.

    1. Republican lawmakers are literally pushing laws criminalizing books because they talk about controversial issues. Specifically LGBTQ or race. Specifically from minority authors. Book bans galore are popping up in conservatives states.

      All a lie.

        1. Establishing lesson content and lesson materiel is not criminalizing books. Parents should and can direct the content of their child’s education, through their elected representatives on the School board.

          1. Did you read the article. An actual criminal complaint was filed.
            “The discussion wasn’t limited only to banning books. Board member Jill Woolbright had independently and without discussing it with other board members, filed a criminal complaint about the availability of a book to students, “All Boys Aren’t Blue,” which by her interpretation of the statutes is distributing obscene material to minors.”
            You apparently want to stay in your bubble and not see what’s going on around you. What County and state do you live in? I’ll bet I can find an example there as well.

            1. which by her interpretation of the statutes is distributing obscene material to minors.”
              Are you advocating for the elimination of obscenity laws? By all means, do the work and get them eliminated. But a parent questioning the appropriateness of a book used in the class room is exactly the way the system is supposed to work. I can only guess at the intent of using the book in the classroom, but I could see where the subject has no place in a public school curriculum. As a parent I have right to make that objection.

              1. You still apparently didn’t read the article or the quote. It wasn’t a parent objecting to a book (multiple books) but an elected school board member (guess which Party?). The book isn’t obscene by the standards of all the bodies that reviewed it but she decided arbitrarily it’s criminal and trying to take out several other books as well.
                https://www.bookbrowse.com/bb_briefs/detail/index.cfm/ezine_preview_number/14959/all-boys-arent-blue

                BTW, you did note that despite your previous assertion nobody was trying to criminalize these books, someone actually is. What County/State is that you live in? I only want to educate you.

                1. “Twitter is not on the masthead of The New York Times. But Twitter has become its ultimate editor. As the ethics and mores of that platform have become those of the paper, the paper itself has increasingly become a kind of performance space. Stories are chosen and told in a way to satisfy the narrowest of audiences, rather than to allow a curious public to read about the world and then draw their own conclusions. I was always taught that journalists were charged with writing the first rough draft of history. Now, history itself is one more ephemeral thing molded to fit the needs of a predetermined narrative.

                  My own forays into Wrongthink have made me the subject of constant bullying by colleagues who disagree with my views. They have called me a Nazi and a racist; I have learned to brush off comments about how I’m “writing about the Jews again.” Several colleagues perceived to be friendly with me were badgered by coworkers. My work and my character are openly demeaned on company-wide Slack channels where masthead editors regularly weigh in. There, some coworkers insist I need to be rooted out if this company is to be a truly “inclusive” one, while others post ax emojis next to my name. Still other New York Times employees publicly smear me as a liar and a bigot on Twitter with no fear that harassing me will be met with appropriate action. They never are.”

                  Bariweiss.com

                2. Again, curating books in school libraries is a a daily endeavor. Children can walk into their public library and pick the book off the shelf , they are very capable of getting the book.

                  I think the reason you are so fearful, is parents are now paying attention. And they are not happy. A wide swath of kids are reading 2-3 grades below their grade level, but the administration and teachers are hyper focused on a tiny percentage of children that don’t even know what gay means.
                  Sexuality is the domain of parents, not schools. If they mess up something as simple as reading, the mine field that is human sexuality, will be an epic disaster.

                  1. So which is it? First it was all “a lie.” It wasn’t happening anywhere, let alone all over the country. Now it’s happening, but it’s all justifiable and perfectly normal. Any yes, like the person wrote you said was lying, the targets just all happen to be LGBTQ or Black? Now that Florida has passed the, “Don’t Say Gay bill, maybe all the rest of the states can follow. But that’s probably a lie too?

                    1. “Now that Florida has passed the, “Don’t Say Gay bill, maybe all the rest of the states can follow. But that’s probably a lie too?”

                      That is a lie and an outrageous lie. Maybe a pedophile would be against the bill, but I don’t know many parents that would be against it. No gay and gender indoctrination kindergarten to grade 3. What is wrong with you?

                      DeSantis answering a reporters lie.
                      https://twitter.com/newsmax/status/1500996993677680642?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1500996993677680642%7Ctwgr%5E%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.wibc.com%2Fblogs%2Fhammer-and-nigel%2Fwatch-desantis-blasts-reporter-for-false-narrative-on-so-called-dont-say-gay-bill%2F

                    2. https://www.powerlineblog.com/archives/2022/03/democrats-still-lying-about-florida.php

                      Democrats Still Lying About Florida

                      This is the provision they are talking about in its entirety:

                      “Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards.”

                      https://www.flsenate.gov/Session/Bill/2022/1557/BillText/er/PDF

                1. “JK Rowling hits back at being ‘cancelled’ after receiving pipebomb death threat”

                  – Yahoo News

                  JK Rowling has reacted after apparently receiving multiple threats of rape and murder from trans activists.

            2. EIB,

              I agree with your assessment that iowan2 may not have read the article that you linked because had he done so he would have certainly noticed that it was authored by you. Are you always this self serving or did you think that nobody would notice that you linked to a blog article written by yourself?

              Your response to iowan2 quotes yourself as writing;

              “Board member Jill Woolbright had independently and without discussing it with other board members, filed a criminal complaint about the availability of a book to students, “All Boys Aren’t Blue,” which by her interpretation of the statutes is distributing obscene material to minors.”

              The next sentence in your article states;

              “The book is about a boy growing up Black and queer, including some sexually graphic passages.”

              It is telling that you would leave this sentence out of your response to iowan2. You wrote this in your article but now it does not support your narrative so ‘poof’, it is gone.

              Do you really believe that sexually graphic passages do not qualify as obscene and that it is ok for this type of material to be in middle school libraries?

              If so, you should note that in the meeting that you wrote about the Flagler County School District cut off the microphone of a parent attempting to read a passage from the book in question and had the police expel him from the meeting.

              1. Please note that the article I wrote was not in response to the suggestion that banning books by LGBTQ and Black authors but well before. When trying tom prove things to people not inclined to listen in the first place. I see no need to recreate the wheel when it already exists. There were links to the local newspaper article for those who choose not to believe me.
                I don’t think sexually graphic passages should be allowed at certain levels in school or libraries. I do question when an individual decides what is and isn’t and starts making criminal referrals after the people in place to make such decisions have already approved it.
                I included the whole article without edits in the hopes iowan2 might read it. Forgive me for not rewriting the whole text again when it was already there. How silly is it to say I didn’t include material that I obviously included and encouraged iowan2 at least twice to read?

        2. Instead of arguing on the blog, Enigma points to a long article he wrote that is more of his usual spin. I am sure school boards make bad decisions on many topics, but he supports the indoctrination of children into the CRT world, where white toddlers have to recognize their privileged status just because of their color.

          Enigma doesn’t like what MLK said, “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”

          1. S. Meyer,

            “ Instead of arguing on the blog, Enigma points to a long article he wrote that is more of his usual spin.”

            It’s because S. Meyer can’t grasp what he is reading most of the time. Any “long article” is code word for I’m too lazy to actually read it. It’s more like he didn’t read it at all.

            1. Svelaz, you are a dope. It is apparent I read his article, but with your intelligence, one can understand why you get so many things wrong. I have read several articles written by Enigma, and most of them have similar features. I explained my argument in my response. Let me repeat it below. Deal with my statement rather than your inabilities.
              ====
              Instead of arguing on the blog, Enigma points to a long article he wrote that is more of his usual spin. I am sure school boards make bad decisions on many topics, but he supports the indoctrination of children into the CRT world, where white toddlers have to recognize their privileged status just because of their color.

              Enigma doesn’t like what MLK said, “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”

            2. I agree with S.Meyer that EIB and Svelaz are dopes because they both argue against laws banning the teaching of CRT theory in K-12 public schools while at the same time insisting that CRT theory is not, not (!), being taught in K-12 public schools.

              This argument is obviously flawed. If CRT theory is not being taught in public schools then a law proposing that the teaching of CRT should be prohibited is meaningless because it would only bar an activity that, according to EIB and Svelaz, does not take place. If this is true, what is the basis for the objection?

              Would they also argue so strenuously against a law that prohibited teaching public school children that fairies lived in tiny hutches located beneath mushrooms in the forest? This isn’t being taught in K-12 schools either.

      1. Iowan2,

        “ All a lie.”

        Nope. Surely you know how to click on links. I provided a few examples. Banning books because they make conservatives…uncomfortable? Conservative snowflakes perhaps?

        They are literally criminalizing the act of having books on shelves that support, explain, issues they don’t like. Sounds like just the thing Turley would be losing his mind on because of his alleged free speech philosophy.

        1. having books on shelves that support, explain, issues they don’t like. </i.

          Taking action on books that create controversy where none exists. Human sexuality is a topic rich for creating strife, where harmony should be cultivated.
          These are topics that have no place in a primary school setting.

          But since you are such a free speech purist, I think I'm going to get A series of 5 history bookks for the 4th and 5th grades. By a little known author, Rush Limbaugh. Excellent books that gets and holds the attention of youngsters and teaches about the founding of this great nation.

  15. I posted this comment a couple of days ago yet crickets from our esteemed Free Speech Professor:

    HEADLINE:

    “A Free Press Under Assault: Attempts to Silence Newsmax, OANN”

    https://www.newsbusters.org/blogs/nb/jeffrey-lord/2022/03/05/free-press-under-assault-attempts-silence-newsmax-oann

    Why has Turley remained silent about the cancellation of Fox’s cable competitors on the Right?

    It’s well known that both Newsmax and OANN attack Fox for not supporting the Big Lie:

    “Mike Lindell Rages At ‘Disgusting’ Fox News For Not Talking About 2020 Election”

    https://www.huffpost.com/entry/mike-lindell-fox-news_n_61e4af7ae4b0c6802ee864ac

    As a self-described “free speech originalist,” it’s mystifying that Turley continues to ignore defending either Newsmax or OANN. Could it be that doing so would be disapproved by his Fox?

    Am I allowed to ask such questions without being attacked? Let’s see….

    1. You can ask all you like. Pointing out the fabricated or parroted nature of much of what you post is not an ‘attack’. Nobody prevents you from posting more, Svelaz. It’s just that there aren’t reality-based responses to imaginary talking points. All free speech is free speech, and speech is speech, not panhandling or destruction of property or violence, and it is something you and other trolls seem to fail to grasp. If you did anything but editorialize or parrot, even with strictly your facts (this is a legal blog full of legally minded people), folks might actually be willing to talk. But nope: you are all, here’s another verbal cut and paste from Wapo, NPR, CNN, or NYT.

      1. James,

        Your reply:

        “All free speech is free speech, and speech is speech, not panhandling or destruction of property or violence, and it is something you and other trolls seem to fail to grasp.”

        is incomprehensible.

  16. The cops need some chalk and should go to the schools where the chalkers kids go and chalk up some ugly comments about those chalkers.

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