Category: Free Speech

  • Court Stops National Park Service from Removing Protestors’ “8647” Flag

    Judge Randolph D. Moss (D.D.C.) issued a temporary restraining order yesterday preventing the National Park Service from revoking the demonstration permit of a protestor or removing the protestor’s flag, which included the numbers “8647.” The court rejected NPS’s arguments that the flag amounted to a true threat or incitement.

    The ruling is temporary, so the court’s assessment goes to the likelihood of success on the merits (and not necessarily the actual success). Still, it’s hard to see how NPS could prevail as the case moves forward.

    The case, Accountability Now USA v. Griess, arose when NPS officers instructed protestors to take down their “8647” flag from their 24/7 protest tent and threatened to revoke their free-speech permit if it reappeared. Accountability Now amended an existing complaint against NPS (for threatening to revoke the permit for other yet other signs that the organization displayed at the site) and sought a TRO.

    The court ruled that Accountability Now was likely to succeed on the merits of their free-speech claim. The court first noted that content-based restrictions on speech, especially political speech, are inherently suspect and generally invalid under the First Amendment. It then rejected NPS’s arguments that the flag represented a “true threat” or “incitement,” two exceptions to the First Amendment’s general prohibition on content-based restrictions on speech.

    “‘True threats’” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black (2003). In assessing whether a statement constitutes a “true threat,” courts look to the entire factual context of the statement. A statement must meet both an objective standard and “a subjective mental-state requirement . . . .” Counterman v. Colorado (2023). As to the subjective standard, a speaker must “consciously disregard[] a substantial and unjustifiable risk that the conduct will cause harm to another.” Id.

    The court said that the overall context of the flag didn’t meet this test. It pointed to a dictionary definition, which said that “86” mostly means “to throw out” or “to get rid of”; the fact that the flag contained no symbol of violence and was part of a months-long demonstration demanding “the impeachment and removal of President Trump”; and the fact that a protestor earlier told an NPS officer that they “want[ed] Trump to live forever” so that he could “rot in jail.”

    “Incitement” is speech “directed [at] producing imminent lawless action and likely to incite or produce such action.” Brandenburg v. Ohio (1969). Like “true threats,” “incitement” also depends on context. It also requires the speaker to have “specific intent, presumably equivalent to purpose or knowledge.” Id.

    The court ruled that the flag didn’t meet this test, either. As with “true threats,” the surrounding context showed that the flag did not constitute “incitement.”

  • No Right to Post “Crass” Statements by Coast Guard Auxiliarist

    The Seventh Circuit ruled yesterday that a Coast Guard Auxiliarist’s “Crass” Statements on social media are not protected by the First Amendment.

    The case, Wenzler v. United States Coast Guard, arose when Coast Guard Auxiliary member James Wenzler posted a series of offensive statements on LinkedIn. After warning him, the Auxiliary suspended Wenzler, initiated formal disciplinary proceedings, and ultimately removed him from his position.

    Wenzler sued, arguing that the Coast Guard retaliated against him for engaging in protected speech. The district court ruled for the Coast Guard, and the Seventh Circuit affirmed.

    The court applied the familiar Connick/Pickering test for free speech for public employees. Under that two-part test, courts first ask if a public employee’s speech was on a matter of public concern. If not, the speech is unprotected. But if so, courts then balance the speaker’s interests “in commenting upon matters of public concern” against the government’s interest “in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Education (1968).

    The court assumed that Wenzler’s speech touched on matters of public concern. It then ruled that the Auxiliary’s interests outweighed Wenzler’s:

    Given the uncontested facts before us, the Auxiliary could have reasonably determined that Wenzler’s speech and actions would be detrimental to the Auxiliary and its reputation. He served in a leadership role, and the example he set matters. The Auxiliary could have reasonably expected that other Auxiliarists would be less likely to work with Wenzler, or at least to work well with him, following his derogatory comments and attacks on others. Wenzler’s statements alarmed at least two members of the public enough to notify the Auxiliary. On this record, the Auxiliary could have been justifiably concerned about its negative impacts to its reputation and, in turn, its recruiting and retention. In the long run, its ability to serve the public might suffer, or at least the Auxiliary could have reasonably believed so.

    The district court properly found that the Coast Guard’s reasonable determination that Wenzler’s speech could undermine the Auxiliary’s mission outweighed his interest in the statements he made.