New life was injected into a free speech legal saga over an "I Eat Ass" bumper sticker yesterday when a federal judge ruled that the expression might violate Florida's obscenity law and would thus be unprotected by the First Amendment.
At the center of the odyssey is Florida man Dillon Shane Webb, who was pulled over in May of 2019 after Columbia County Sheriff's Deputy Travis English took exception to the sticker. Webb declined to censor it on the spot, his vehicle was searched, and he was subsequently arrested and booked in jail for "obscene writing on vehicles" and "resisting an officer without violence." (The "resisting" in question refers to his refusal to alter the sticker's appearance at the officer's demand.)
Those charges were dropped shortly thereafter, with the State Attorney's Office citing the First Amendment.
But the U.S. District Court for the Middle District of Florida ruled yesterday that the case is not so cut and dry, awarding qualified immunity to English and thus dooming the suit Webb brought against him for allegedly violating his free speech rights and for falsely arresting him.
"While Webb denies the Sticker was in fact obscene, in interviews he repeatedly acknowledged the sexual nature of his Sticker," wrote Judge Marcia Morales Howard in Webb v. English, "albeit couched as an attempt at humor, showing that the notion that an erotic message was more than hypothetical—it could reasonably be viewed as the predominant message being communicated." She added that "if the Sticker depicted a sexual act, it would be protected speech under the First Amendment only if it had serious literary, artistic, political, or scientific value." English, as well as Corporal Chad Kirby—who via phone agreed Webb should be arrested—thus can't be held liable over their subjective determination and the subsequent arrest.
Yet the law in question—Fla. Stat. § 847.011(2), which prohibits "any sticker, decal, emblem or other device attached to a motor vehicle containing obscene descriptions, photographs, or depictions"—is unconstitutional on its face, according to Eugene Volokh, a professor of law at the University of California at Berkeley. "This entire provision is therefore unconstitutionally overbroad and thus invalid on its face, and thus can't be applied even to possession of obscenity in public," Volokh argued in May 2019.
The doctrine of qualified immunity protects certain state actors from accountability for alleged misconduct if the exact way they violated your rights has not been explicitly carved out as unconstitutional in a prior court decision. Though it was supposed to shield government officials only from silly lawsuits, it has instead shielded them from ones with merit, including the more than two-dozen cops who blew up an innocent man's home during a botched SWAT raid on the wrong residence, a cop who conducted an illegal search and ruined a man's car in the process, cops who allegedly stole hundreds of thousands of dollars, and cops who arrested a man on bogus charges after attacking him outside his house. Those who overcome qualified immunity do not win damages as a result; they merely get the opportunity to state their claim before a jury.
This is not the first time a qualified immunity case arose from an alleged breach of the First Amendment. Denver cops affirmatively violated a man's First Amendment rights when they forced him to delete a video of them beating a suspect, a federal court ruled in March. That same court also gave the officers qualified immunity because, though the officers were guilty of violating the man's rights, that right was not "clearly established" at the time, the ruling said.
And the doctrine does not solely apply to police: College administrators at Arkansas State University received qualified immunity after hamstringing a student from recruiting for a conservative political advocacy group. The Supreme Court declined to hear that case, eliciting a scathing rebuke from Justice Clarence Thomas.
Ironically, there was a ruling that may have helped Webb. Nieves v. Bartlett, a 2019 Supreme Court decision, holds that officers may be held liable if they "have probable cause to make arrests, but typically exercise their discretion not to do so." One would assume that applies here, where the officer surely should have exercised his discretion not to make an arrest over a bumper sticker.
Yet in an apt demonstration of how lopsided qualified immunity doctrine is, Judge Howard noted that the Supreme Court handed that particular decision down three weeks after Webb's arrest. "As such," she wrote, "as of the date of Webb's arrest, the right to be free from a retaliatory arrest that was otherwise supported by probable cause was not clearly established."