ACLU Urges Supreme Court to Affirm Right to Observe Police During Protest

In a police retaliation case, the ACLU asks the court to protect the right to observe police activity in public, and to reconsider the doctrine of “qualified immunity.”

Affiliate: ACLU of Missouri
September 7, 2023 3:56 pm

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WASHINGTON – The American Civil Liberties Union and the American Civil Liberties Union of Missouri filed a petition in the U.S. Supreme Court urging it to reverse a decision dismissing a case against police for tear gassing legal observers after they departed a protest sparked by a fatal police shooting. The case, Molina v. Book, asks the court to resolve a split among the federal appellate courts concerning when words printed on clothing are protected by the First Amendment. The petition also asks the court to reconsider the doctrine of “qualified immunity,” which shields government officials from accountability for violating the Constitution.

“Our clients were tear gassed for being legal observers at a protest. The Eighth Circuit court’s ruling that such misconduct does not violate clearly established First Amendment rights is egregiously wrong,” said Anthony Rothert, Director of Integrated Advocacy at the ACLU of Missouri. “The idea that words written on clothing aren’t protected by the First Amendment unless everyone would understand their message denies constitutional protection to one of the most common forms of public expression.”

The plaintiffs in the case, Sarah Molina and Christina Vogel, were legal observers at a protest and wore bright green hats stating “National Lawyers Guild Legal Observer.” When police ordered the protesters to disperse, Molina and Vogel left, and returned to Molina’s house, several blocks away, where they stood on the sidewalk. Police in an armored vehicle later drove by Molina’s house and officers threw multiple tear gas canisters at Molina and Vogel. Molina and Vogel sued, arguing that the police had retaliated against them for participating as legal observers in the protest. They argued that the police tear gassed them because they wore hats proclaiming that they were legal observers, and because they observed the police, both First Amendment protected activities.

A divided panel of the U.S. Court of Appeals for the Eighth Circuit dismissed the case. It ruled that words printed on clothing do not warrant First Amendment protection unless they express a “particularized message,” and that the words “National Lawyers Guild Legal Observer” on the plaintiffs’ hats were not protected because “not everyone” would understand the hats to express a “pro-protest” message. Plaintiffs argue that words, no matter where they appear, are “pure speech” protected by the First Amendment without regard to whether they express a “particularized message.” The Fourth, Fifth, and Ninth Circuit have adopted the plaintiffs’ view, while the Sixth, Seventh, and Eighth Circuit have ruled that words on clothing are protected only if they express a particular viewpoint.

The ACLU’s petition asks the court to resolve this disagreement by applying the First Amendment to words printed on clothing whether or not it expresses a “particularized message,” and to reverse the Eighth Circuit’s ruling that it was not “clearly established” that citizens have a right to observe the police unobtrusively in public. The ACLU also asked the court to reconsider the doctrine of qualified immunity, a judicially created rule that shields government officials of liability for violating the constitution unless they violate “clearly established” rights.

“This case illustrates just how wrong the doctrine of qualified immunity in its current form is. It should be obvious that police cannot tear gas someone for being a legal observer at a protest, yet the Eighth Circuit managed to dismiss a case alleging fundamental First Amendment violations,” said David D. Cole, ACLU’s national legal director. “We’re asking the court to reconsider that doctrine’s very foundations, as well as to make clear that the First Amendment protects all written words, without some assessment of whether they express a sufficiently particular view.”

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