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Sixth Circuit Upholds County Fairgoer's Right to Swear at Police

By Laura Temme, Esq. on February 17, 2022 9:24 AM

The Sixth Circuit Court of Appeals recently revitalized a free speech case out of Ohio centered on a county fairgoer's right to use coarse language during a police interaction.

On July 29, 2016, Michael Wood attended Ohio's Clark County Fair sporting a shirt that read "Fuck the Police." According to Wood, a few people commented on it, including a sheriff's deputy who remarked, "Hey, Wood, I like your shirt."

A few hours later, the county sheriff's department received a complaint about Wood's shirt. Three deputies approached Wood and asked him to identify himself. He declined and started recording the interaction. When his camera malfunctioned, the deputies reportedly laughed and let Wood walk away.

But it turns out Wood's problems were just beginning.

Fairgrounds Exec Insists on Wood's Removal

Another few hours passed before officers responded to another call from the fairgrounds. The fair's executive director, Dean Blair, and five deputies (three of whom had spoken with Wood earlier in the day) approached Wood, who was no longer wearing his "Fuck the Police" shirt.

The officers' body camera footage shows Wood asking the deputies whether he had committed a crime and if he was being detained. Blair replied that Wood was "not welcome" and needed to leave the fairgrounds. Wood agreed to leave if he was refunded the admission fee he'd paid to get into the fair. Blair gave Wood five dollars and told him to "keep the change" and never return. The officers and Blair accompanied him to an exit, and along the way, Wood had some choice words for the group.

"Fucking thugs with guns that don't uphold the United States Constitution," Wood said. "Fuck all you. You dirty rat bastards." He continued talking all the way to the gate, calling the officers "thugs with badges" and asking whether they had taken an oath to uphold the Constitution.

Blair told the officers that Wood was "disturbing [his] peace" and shouted at them to charge Wood with a crime. After some discussion, the deputies arrested Wood and charged him for disorderly conduct and obstructing official business—charges the local prosecutor later dropped. En route to the jail, body cam footage captured an officer asking Wood, "How's that work? You got a shirt that said, 'f the police,' but you want us to uphold the Constitution?"

Wood Files Claims for False Arrest and First Amendment Retaliation

Wood filed several claims against all six officers involved in his arrest under 42 U.S.C. §1983. The statute allows anyone who acts as a representative of the state to face civil liability if they violate a person's civil rights. §1983 claims often deal with excessive physical force by law enforcement, but the statute also covers infringement of First Amendment rights.

The defendant officers moved for summary judgment, and a magistrate judge recommended granting the motion on all but the false arrest and First Amendment retaliation claims. But the district court went further. Concluding that qualified immunity protected the officers on the false arrest claim and there was insufficient evidence to support the retaliation claim, the court granted the defendants' summary judgment motion for all claims. 

Wood appealed to the Sixth Circuit.

Sixth Circuit Reverses Summary Judgment Order

On the false arrest claim, the Sixth Circuit first noted that the only issue was whether the officers had probable cause to arrest Wood.

The Sixth Circuit has previously established that speech can only constitute disorderly conduct under Ohio law and the First Amendment when it rises to the level of "fighting words." In Chaplinksy v. New Hampshire, the U.S. Supreme Court held that fighting words are words that "by their very utterance inflict injury or tend to incite an immediate breach of the peace." And although calling a city marshal "a damned Fascist" was enough for a criminal charge in Chaplinsky's case in 1942, today, "profanity alone is insufficient to establish criminal behavior."

Read the full Wood opinion and thousands of other cases with a free trial of Westlaw Edge.

The officers argued that they had probable cause to arrest Wood because he had used "personally abusive epithets." But the Sixth Circuit pointed out that police are held to a higher standard than the average citizen, and the First Amendment requires them to tolerate "coarse criticism." The court concluded that while Wood's speech was profane, it was "not likely to provoke a violent response," and therefore, the officers did not have probable cause to arrest him.

On Wood's First Amendment retaliation claim, the Sixth Circuit held that his "Fuck the Police" shirt was "clearly protected speech." Moreover, the court noted, his removal from a public event by armed officers met the threshold of actions that might "chill" the average person from continuing to engage in protected speech. Finally, the court held that a jury could reasonably conclude that Wood's shirt was the reason the officers were motivated to engage with him in the first place.

In closing, the Sixth Circuit quoted the Supreme Court's 1944 decision in Baumgartner v. United States:

"One of the prerogatives of American citizenship is the right to criticize public men and measures—and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation."

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