Petition for Writ of Certiorari filed by the American Civil Liberties Union of Missouri asks the Supreme Court of the United States to resolve a split among the federal appellate courts concerning when words printed on clothing are protected by the First Amendment.
“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,” said Anthony Rothert, ACLU of Missouri director of integrated advocacy.
The Sixth, Seventh, and Eighth Circuits all deny First Amendment protection to written words on clothing unless they express a particularized viewpoint while the Ninth, Fourth, and Fifth Circuits have ruled that words printed on clothing, like words on paper or a computer screen, are protected without a threshold inquiry into whether they express a particularized message.
“Only this Court can resolve the split,” wrote Rothert in the Sept. 7 brief. “The lower courts’ confusion about whether words are protected speech when they appear on clothing warrants this Court’s review. Few principles are more basic to the First Amendment than the proposition that words are presumptively protected, regardless of their content.”
Molina v. Book also asks the court 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.
“Our clients were tear gassed for being legal observers at a protest,” Rothert said in a statement. “The Eighth Circuit court’s ruling that such misconduct does not violate clearly established First Amendment rights is egregiously wrong.”
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.
“If it is unconstitutional to arrest someone for observing the police, it’s obviously unconstitutional to hurl tear gas at them for the same conduct,” Rothert stated in the pleading. “ By holding otherwise, the Eighth Circuit extended qualified immunity to conduct the officers were reasonably on notice was unconstitutional, merely because the claims at issue arose under the First rather than the Fourth Amendment.”
The petition also asks SCOTUS to reconsider its qualified immunity doctrine citing lost text from 42 USC Section 1983, which the ACLU argues shows that U.S. Congress intended to override common law immunities when it adopted the doctrine.
“Recovery of the omitted words reveals that the Court’s decision to superimpose a judicially created defense onto Section 1983 directly contravenes the statute’s full text,” Rothert wrote in the certiorari petition. “Such a direct conflict between statutory text and existing precedent is precisely the kind of “superspecial justification” that warrants revisiting past precedent.”
When the Civil Rights Act of 1871 passed, it was enacted to provide newly freed African American slaves a remedy to sue when government workers violated their rights under 42 USC Section 1983. But when SCOTUS issued the Qualified Immunity doctrine in 1967, it limited the effectiveness of the law
“This case illustrates just how wrong the doctrine of qualified immunity in its current form is,” said David D. Cole, ACLU national legal director. “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. 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.”