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For the second time this year, Sexton has sued the city and its police department for violating his constitutional rights. The first complaint, filed in January, was prompted by an incident in which he flipped off an officer. The second, put forward last week, involves Sexton's arrest over his use of the word "fuck" in phrases such as "Fuck the police."
The latter exchange was captured in a video (below). At one point, an officer says, "I'm more than happy to have you stand there and yell. However, yelling the word 'fuck' like that is coarse or offensive language."
In response, Sexton asks: "Do you want to lose in court? Do you really want to take that to court and lose in court? . That will not stand up in federal court. The Supreme Court will slap that in your face. Thank you!"
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The city's response to the new lawsuit, delivered via email, reads: "The Colorado Springs Police Department appreciates Westword reaching out to our organization to discuss this incident, but we are unable to speak on any matter that is under litigation."
Attorney Andrew McNulty of Denver-based Killmer, Lane & Newman, LLP, who represents Sexton in both cases against Colorado Springs, describes the arrest as "an obvious free-speech violation. And it is not the first time Colorado Springs officials have arrested and maliciously prosecuted Mr. Sexton, and others, for simply criticizing them."
Sexton's YouTube channel is called Pikes Peak Auditors, and it's dominated by videos in which he records police interactions in ways that can be provocative. But as indicated by his remarks, he has a keen understanding of free-speech law, which the most recent lawsuit underscores by way of an introductory passage that references 1971's Cohen v. California, in which the U.S. Supreme Court ruled that Paul Robert Cohen wasn't guilty of disturbing the peace simply for arriving at a courthouse wearing a jacket emblazoned with the phrase "Fuck the Draft."
One passage reads: "Plaintiff Michael Sexton was subjected to a humiliating arrest for simply saying the four-letter word that the Supreme Court of the United Stated held, over fifty years ago in Cohen, is protected by the First Amendment: fuck."
Also shared in the document is this excerpt from the Cohen v. California majority decision: "[T]he State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. . For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it harvest hope food bank columbia sc nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual."
Here's the video that's key to the second lawsuit. The main action begins at the 18:40 mark and escalates over the next five to ten minutes.
McNulty is a veteran of unusual First Amendment challenges. He was among the attorneys who defended Free the Nipple Fort Collins in a landmark casethat toppled a city ordinance that made female toplessness a crime, and last year, he took on a charge stemming from a topless Frisbee game that eventually cost Loveland $50,000.
More recently, McNulty and fellow lawyer Mari Newman sued the City of Aurora over an attack on a violin vigil in honor of the late Elijah McClainthat made international headlines after police broke up the crowd using chemical agents.
Of the latest Sexton case, McNulty contends that "there is little separating authoritarian regimes and Colorado Springs when it comes to censoring individuals for criticizing the government. The First Amendment is under attack in Colorado Springs, and citizens, like Mr. Sexton, who are willing to stand up for their rights are the only bulwark against Colorado Springs' repeated tyranny."
Click to read Michael Sexton v. the City of Colorado Springscomplaint from July and a similarly titled documentfiled in January.
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Indiana Firefighter Falls Pray to First Amendment Auditors
A South Bend firefighter who got into an argument with a local First Amendment auditor has been disciplined. Lance Gunderson was given a 5-day suspension without pay, required to attend anger management training, and prohibited from working overtime for 30 days following an incident on June 13, 2021.
Gunderson was at the scene of a medical incident in public when a member of Freedom 2 Film approached while filming. The firefighter initially used his body to screen the cameraman’s view of the patient, but then began arguing with one of them. The man later made a complaint over what occurred. Here’s the local story.
I know it feels like there is never enough time to squeeze in all of the training that firefighters require, but these types of misunderstandings keep happening because First Amendment Auditors are much better trained than our own people about what is and is not legal when it comes to filming in public. Here’s my column from Firehouse Magazine from last December that discusses the problem in the context of fire station visits.
Listen – First Amendment Auditors are on a mission to teach government officials a lesson. They commonly do it in an “in-your-face” manner… until you show them that you know the law. At that point their job is done and they will move on to a softer target. The best advice I can offer is to know the law! In public places – absent some compelling safety or security reason to exclude folks with cameras (more than just concerns about patient confidentially or dignity), let them film. Don’t bite! They have a First Amendment Right to film, and would like nothing more than for you to try to stop them. SO DON’T! My Firehouse column gets into it more detail on the subject. I also have a class I have delivered at Firehouse Expo and FRI on the subject if you need one for your department – but the bottom line is: make this a non-issue in your department. Let’em film.
Curt VaroneИсточник: http://www.firelawblog.com/2021/08/30/indiana-firefighter-falls-pray-to-first-amendment-auditors/
Colorado town pays $9,500 to ‘First Amendment auditor’ following post office confrontation
On Feb. 24, 2020, a YouTube channel called Amagansett Press posted a 51-minute video of a man and his son entering the post office on a “First Amendment audit” to test their right to “take video and photographs in public and from publicly accessible places.” After police asked the man filming inside the post office to desist and leave the premises, the man threatened legal action, and the town of Silverthorne, Colorado, eventually agreed to pay a $9,500 settlement, as per Summit Daily News, a local newspaper serving Summit County, Colorado.
Jason Gutterman isan alleged First Amendment auditor and owner of the Amagansett Press YouTube channel. In the Youtube video in question, Gutterman is shown entering the post office and filming P.O. boxes and bulletin boards before proceeding into the main lobby. According to the Amagansett Files, a self-proclaimed database of political disruptors and unrelated to Gutterman’s channel, Gutterman is a white nationalist with ties to the Proud Boys, an all-male 1st amendment audit colorado group that was present alongside Klansmen, antisemites, and other hate groups at the 2017 Unite the Right rally in Charlottesville, Virginia.
Shortly after Gutterman entered the main post office, several employees and a number of customers reportedly asked him to stop filming and leave. When he refused, Silverthorne police officers were called to intervene, leading to a “lengthy and somewhat contentious” exchange between Gutterman and the officers, according to Summit Daily News.
In defending his actions, Gutterman referenced the United States Postal Service’s Poster 7, entitled “Rules and Regulations Governing Conduct on Postal Service Property.” With respect to photography and videography, the poster reads, “photographs for news purposes may be taken in entrances, lobbies, foyers, corridors, or auditoriums when used for public meetings except where prohibited by official signs or Security Force personnel or other authorized personnel or a federal court order or rule. Other photographs may be taken only with the permission of the local Postmaster or installation head.”
Gutterman claimed the video was for news purposes, specifically his Amagansett Press channel. Since posting its first video in December 1st amendment audit colorado, Gutterman’s channel has amassed, as of October 18, 2020, over 200,000 subscribers and 250 videos, the majority of which containing interactions with law enforcement and public officials.
In the post office video, Gutterman debated with law enforcement officers for several minutes inside the building before moving outside to continue the conversation. Officers reportedly discussed how to proceed with the local postmaster via telephone as the exchange with Gutterman went on. “At the request of the Postal Service employees and based on the best information available to them at the time, the Silverthorne police officers asked the videographer to leave the premises,” Silverthorne Police Chief John Minor said in a statement.
Toward the end of the video, Gutterman stated his intention to pursue legal action against the Silverthorne Police Department. Summit Daily News reported that lawyers from both sides met shortly after the incident to agree on a settlement.
Town reaches an “economic settlement” with Gutterman, stands by officers’ response
Shortly after the settlement was announced, the town of Silverthorne issued an additional statement stressing the deal was not an admission of wrongdoing, and the police department defended the actions of officers at the scene. Chief Minor noted that elevating the case to the federal level would likely have been much costlier than the $9,500 eventually paid to Gutterman in the final settlement, though Minor confessed officers would have approached the situation differently given a second chance.
“We were following postmaster directions, Poster 7 and we believe the law as we knew it,” Minor told Summit Daily. “Our attorney affirmed the fact that we acted appropriately. But given the circumstances we’d do it differently. … Let me put it this way, we have better things to do with our time.”