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A Georgia sheriff violated the First Amendment when he posted signs on the lawns of registered sex offenders to warn away trick-or-treaters, a federal appeals court said in a recent ruling. A three-judge panel of the U.S. Court of Appeals for the 11th Circuit unanimously concluded that the signs amounted to unconstitutional government-compelled speech. The decision strikes a blow against irrational policies that stigmatize sex offenders without any plausible public safety payoffin particular, panicky precautions against the special danger they allegedly pose on Halloween.

Several days before Halloween in 2018, two sheriff's deputies put up cautionary signs in the front yards of all 57 registered sex offenders in Butts County. "WARNING!" the signs said. "NO TRICK-OR-TREATING AT THIS ADDRESS!!" This "community safety message," the signs explained, was "from Butts County Sheriff Gary Long." After trespassing on private property to publicly shame the people living there, the deputies told the affected residents they were not allowed to remove the signs.

In a message on his official Facebook page, Long explained that "my office has placed signs in front of every registered sex offender's house to notify the public that it's a house to avoid." He claimed "Georgia law forbids registered sex offenders from participating in Halloween, to include decorations on their property." As Long later conceded, that was not true.

Long also claimed his signs would protect "the safety of your children." Yet he made no effort to distinguish among registrants based on the crimes they had committed or their state-assessed risk of recidivism. And he admitted that during his six years as sheriff, none of the residents he targeted had been accused of inappropriate contact with children, whether on Halloween or the 364 other days of the year.

Long was making a big show of responding to a mythical menace. Despite widespread warnings about sex offenders luring children with candy on Halloween, a 2009 study of 67,000 sexual crimes against minors found "no increased rate on or just before" the holiday. The authors of that study, which was reported in the journalSexual Abuse, noted that "states, municipalities, and parole departments " nevertheless "have adopted policies banning known sex offenders from Halloween activities, based on the worry that there is unusual risk on these days."

Long's stunt was not just irrational, three of the men he targeted argued in a federal lawsuit; it was unconstitutional. The Supreme Court has long recognized that the First Amendment generally prohibits the government from forcing people to promote messages with which they disagree.

In the 1977 case Wooley v. Maynard, for example, the Court held that New Hampshire could not punish two Jehovah's Witnesses for covering up the state motto, "Live Free or Die," on their license plate. New Hampshire, the justices observed, "in effect requires that appellees use their private property as a 'mobile billboard' for the State's ideological message or suffer a penalty." The Court concluded that the state could not "constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public."

In their lawsuit against Long, Butts County residents Corey McClendon, Reginald Holden, and Christopher Reed argued that his warning signs likewise qualified as unconstitutionally compelled speech. U.S. District Judge Marc Treadwell, who issued a preliminary injunction against Long in October 2019, initially seemed inclined to agree. But he subsequently dismissed the lawsuit after concluding that Long's signs did not implicate the First Amendment after all.

As Treadwell saw it, the signs did not qualify as compelled speech because passers-by would ascribe the message to Long rather than the residents. Hence McClendon, Holden, and Reed were not forced to "endorse" that message. Treadwell also noted that the plaintiffs were free to contradict Long's warning by posting additional, corrective signs.

In a January 19 ruling, the 11th Circuit concluded that Treadwell's analysis was mistaken. Although he "determined that a compelled government speechclaim requires a finding that a reasonable third party would view the speech as 'endorsed' by the plaintiff," the appeals court said, "Wooley contains no suchrequirement." The "primary harm" in that case, it noted, was "the required use of the plaintiff's property as a 'billboard' for government speech."

The 11th Circuit said Treadwell "also erred by determining that the plaintiffs' ability to place their own yard signs disagreeing with the warning signs could cure the original violation." If that were true, it said, "the Sheriff could place any sign identifying himself as the speaker in any county resident's yard," as long as the resident was allowed to provide a counterpoint with his own sign. Such commandeering of private property for official propaganda would be plainly inconsistent with Wooley.

Since Long's signs qualify as compelled speech, the 11th Circuit said, they have to satisfy "strict scrutiny," meaning they are "narrowly tailored" to serve a "compelling" government interest. And while Long's avowed purpose of protecting children from sexual predators counts as "compelling," the court said, his yard signs are "not narrowly tailored to achieve that goal."

Treadwell noted that McClendon, Holden, and Reed "have, by all accounts, been rehabilitated and are leading productive lives." Nor was there any evidence that the other registrants posed a threat to children.

Long "did not consider whether any of the registrants were classified by Georgia as likely to recidivate," the 11th Circuit noted, and he "even admitted that, since he took office in 2013, he had never had an issue with a registrant having unauthorized contact or reoffending with a minor on Halloween or at any other time." Long, in short, "has not provided any record evidence that the registrants in Butts County actually pose a danger to trick-or-treating children or that these signs would serve to prevent such danger."

Unfortunately, legislators typically show about as much judgment as Long when they target people convicted of sex offenses, who are hounded by myriad requirements and restrictions long after they have completed their sentences. Those policies, which include the registries themselves as well as residence restrictions and a panoply of occupational disqualifications, are likewise supposed to protect public safety. But as with Long's yard signs, there is little evidence that they work as advertised. Instead they impose punishment in the guise of regulation, undermining rehabilitation by demanding perpetual ostracism.

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11th Circuit Says a Sheriff Violated the First Amendment by Posting Warning Signs on the Lawns of Registered Sex Offenders - Reason

An Oregon church is suing the city of Brookings, Oregon, over limits the local government has imposed on how often it can serve free meals to the poor. A federal lawsuit filed Friday by St. Timothy's Episcopal Church argues that Brookings' regulations on "benevolent meal service" unconstitutionally restrict its religious mission to feed the hungry.

"What we're doing is what churches do. Churches feed people," Rev. Bernie Lindley of St. Timothy's toldReason last year, shortly after the Brookings ordinance passed. "To tell a church that they have to be limited in how they live into the Gospel of Jesus Christ is a violation of our First Amendment right to freely practice our religion."

St. Timothy's has run a soup kitchen several days a week since the 1980s, as have other churches in Brookings. When those churches shut down their meal service during the pandemic, St. Timothy's extended its effort to six days a week.

Seeing more people at the church more days a week didn't sit well with some of the neighbors. They complained in an April 2021 petition to the city government that St. Timothy's soup kitchenand its participation in the city's safe parking program, whereby it lets people live in their cars on the church parking lotwas bringing crime and vagrancy to the area.

In response, the city council passed an ordinance in October that said churches and nonprofits in residentially zoned areas could offer free meal service only two days a week. And to do that, they needed special conditional use permits.

On paper, this was actually a liberalization of Brookings' zoning rules. Because state health authorities regulate soup kitchens like restaurants, and restaurants are a commercial use, soup kitchens were technically prohibited in the city's residential zones. And all of Brookings' churches are located in residentially zoned areas.

City Manager Janelle Howard says the ordinance was intended as a compromise: It legalized technically prohibited soup kitchens while mollifying residents' complaints about the nuisances they caused.

In practice, though, the churches' charitable work had been unregulated before. The ordinance's actual effect was to pave the way for a crackdown.

Lindley and St. Timothy's participated in early talks with the city about its soup kitchen ordinance, but they dropped out after it became clear that Brookings intended to limit the number of days the church could offer meals.

The ordinance became enforceable last week, potentially opening St. Timothy's up to fines and other sanctions. To prevent that, the church and the Episcopal Diocese of Oregon filed a lawsuit in the U.S. District Court for the District of Oregon.

The complaint argues that Brookings' soup kitchen regulations violate the U.S. and Oregon constitutions' protections of free expression and the free exercise of religion. It also claims that the regulations' vague description of "benevolent meal service" and unclear potential sanctions violate the U.S. Constitution's due process protections.

Lastly, it argues that Brookings is violating a federal law limiting state and local governments from adopting land use regulations that impose a "substantial burden" on "religious exercise."

"We've been serving our community here for decades and picking up the slack where the need exists and no one else is stepping in," Lindley declared in a statement. "We have no intention of stopping now and we're prepared to hold fast to our beliefs. We won't abandon the people of Brookings who need our help, even when we're being threatened."

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Lawsuit: Crackdown on Church Soup Kitchens Violates the First Amendment - Reason

On a recent Saturday, local high school teacher Tony Nipert deboarded a MetroLink train at the Central West End station while enjoying one of his favorite hobbies: exploring St. Louis. As he exited the train, he decided to snap a quick photo of the train departing toward downtown and pulled out his phone.

After taking a quick shot of the moving train, he decided to take one more photo because the newly refurbished station was looking so good.

I love how the buildings kind of rise up out of the station. So I got back at a distance, and at this point nobodys on the platform, recalled Nipert, who at the time was working on a piece for Next STL about how MetroLink is safer than many people think. Its kind of empty except for the two security guards. And I take a big landscape photo of it.

About two seconds after he nailed his shot, Nipert told St. Louis on the Air, a security guard yelled at him.

She said, Who are you taking a photo of? And I said, Oh, Im taking it of the platform, and I gestured that I was trying to do that, Nipert explained.

While Nipert shrugged off the interaction as no big deal (he quickly apologized and left), he added that he was surprised to learn Metro Transit wouldnt want people taking photos of the transit system which he thinks of as part of the public commons.

I thought to myself [that] maybe theyve got some rules about customer privacy or something and theres a worry about something like that, he said.

Evie Hemphill

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St. Louis Public Radio

In fact, Metro does list rules on its website for photography and video along the transit system. While the agency notes that such images are fun ways to commemorate your trip on Metro, it notes that such activities may be limited for security, safety or customer convenience.

The transit agency outlines separate rules for journalists and commercial photographers, saying that such people must first contact the Metro Communications Department for approval.

And its that distinction that raises concerns for Lisa Hoppenjans, assistant professor of practice and director of the First Amendment Clinic at Washington University School of Law.

A policy that singles out journalists and treats them differently than sort of anyone else who could take a photo with the same type of equipment with a cellphone camera like we all have that is concerning, she said. Because under the law, the courts will look very skeptically at restrictions that vary based on the content of the speech.

Photography is a form of expression, and as such falls under First Amendment rights enshrined in the U.S. Constitution.

In particular, if you are in a public place, you generally have a right to take photographs of things that are plainly visible, Hoppenjans said Tuesday on St. Louis on the Air. So here, on the government-controlled Metro [platform], this is a public place it sounds like what [Nipert] was photographing was clearly visible. And so as a general rule, the First Amendment would protect that.

Even so, Hoppenjans acknowledges that such rights are not absolute there can be reasonable time, place and manner restrictions, such as rules against tripods. But simply having an individual take a few photos in a nonobtrusive, nonobstructive way, it certainly is questionable that [Nipert] was asked to stop that. A journalist should have the same freedoms, she said.

Photos, public space and the 1st Amendment

Listen as host Sarah Fenske talks with Wash U's Lisa Hoppenjans and as listeners as well as the head of Bi-State Development and the general counsel of the National Press Photographers Association share their perspectives.

Taulby Roach, president and CEO of Bi-State Development, which oversees Metro Transit, provided a statement to St. Louis on the Air on Tuesday morning, emphasizing that the agencys photo and video rules are designed to keep everyone safe.

We dont want anyone to accidentally get knocked down or off of a MetroLink platform while trying to avoid a camera crew or trying to attract the attention of a reporter, Roachs statement read in part. He also noted that security team members are trying to keep everyone safe and although they are trained about the photo and video rules, they do get confused on occasion, and for that we apologize.

Its not just governmental entities that sometimes try to tell would-be photographers what they cant do in a public setting, noted Mickey Osterreicher, general counsel of the National Press Photographers Association. He said restricting access is a big issue for his members these days.

We are dealing with this around the country all the time. There are people now, unfortunately, that think that they have some reasonable expectation of privacy when theyre in a public place, Osterreicher said. And I cant tell you how many times we hear from our members that people at demonstrations when theyre out there protesting, where part of it is being seen and heard they tell people, You cant take my picture.

Hoppenjans noted that while someone does not need your consent to take your photograph" in a public place, there are restrictions on what you can do with a strangers photo. You cant go use it in an advertisement without their consent, for example, she said.

But if youre using it in the context of news reporting or a similar type of use, that is generally going to be protected.

St. Louis on the Air brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill and Kayla Drake. Jane Mather-Glass is our production assistant. The audio engineer is Aaron Doerr.

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Photos, public space and the 1st Amendment - St. Louis Public Radio

This is an opinion column

Brookside the tiny hamlet outside of Birmingham now infamous for its interstate patrols, aggressive policing and possibly phantom traffic citations might have more to worry about than just Lt. Gov. Will Ainsworths call for an official audit or national news outlets focusing their attention on the town of fewer than 1,300 people.

And thats because the town, by way of its police force and now former Police Chief Mike Jones, may have violated the First Amendment rights of those who complained about arrests, tickets and other traffic stops.

As John Archibald reported Thursday, the Brookside Police Department apparently has a consistent practice of patrolling not just the highways of Alabama but also the byways of social media and retaliating against the departments critics. Two things really stuck out to me as a First Amendment scholar in that most recent piece: one woman, Michelle Jones, who cited a mysterious phone call from a Brookside detective claiming she issued threats, incited a riot and slandered the Brookside Police Department on Facebook and a Brookside man who said, after a similar post, an officer told him the chief was pretty upset and any more backlash like that towards his police department and itll be far worse than a ticket.

Those words should give us all pause and cause for concern at the prospect of the police powers of the state being wielded to silence speech. For while the text of the First Amendment reads, Congress shall make no lawabridging the freedom of speech, we have thankfully interpreted that to mean all agents of government acting under the color of law from the president, to the governor, to public school employees and, yes, even police officers must respect free speech rights.

However, lest anyone start shouting about fires and crowded theaters, there are certainly limits to what the First Amendment protects, and those limits include threats and incitement. It is doubtful, though, that Jones Facebook posts rose to the level of what is constitutionally actionable. Inciting a riot via Facebook sounds like a nigh impossibility, and thats not even considering the limitations under Brandenburg v. Ohio that the state can only punish speech designed to produce imminent lawless action. An online threat is more likely actionable generically, but Jones unless she posted something that a reasonable person would view as a serious expression of an intention to commit violence against the Brookside Police Department was again likely engaging in protected speech.

And if the departments staff truly feels slandered (quick point of order: they would have be libeled on Facebook, the difference there being spoken versus something published), the answer there is for a specific individual to sue Jones for defamation not to harass her via telephone.

But its that second anonymous complaint that gets at the real heart of this banal evil. There is no right in this country for a police chief to not be upset about comments made publicly or to somehow escape a dreaded and terrible backlash. If the First Amendment is to mean anything if were going to have the freedom of speech in this country and in this state it has to mean that police departments cannot threaten critics of their official conduct.

That last point was made clear some 60 years ago in a landmark case from right here in Alabama. In New York Times v. Sullivan, Montgomery Public Safety Commissioner L.B. Sullivan attempted to recover damages from paper after it printed a defamatory ad written by a Martin Luther King Jr. fundraising committee. While Sullivan won in Alabama courts, his judgment was overturned by the Supreme Court as it established the actual malice rule, a standard that works to protect the right to criticize public officials and public figures so long as speakers dont act with a reckless disregard for the truth.

Did Jones actually threaten, incite or defame? Did the Brookwood man bring down some nefarious shroud of untruth upon his hometown police department? Most likely not. What we appear to have is a pattern and a practice of the government silencing speech that it does not like.

And whether thats the federal government, the state government or the people running Americas most notorious (for now) speed trap, thats something we simply cannot have in our country.

Will Nevin, J.D., Ph.D., is an assistant professor and program coordinator for Communications Media at Alabama A&M University.

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Brookside PD ran afoul of good policing practices and possibly the First Amendment - AL.com

Federal government agents should not have free rein to violate the rights of the public with impunity. That's the uncontroversial premise behind a spate of petitions before the U.S. Supreme Court that pertain to law enforcement officers who breached clearly established law, and whose victims want to seek recourse.

Recourse can prove elusive, if not impossible.

The Court has yet to announce if it will hear two of those cases. The first pertains to a federal officer who devised a fake sex trafficking ring and jailed a teenage girl on bogus charges for two years. The second involves a Department of Homeland Security (DHS) agent who, outside of a bar, tried to shoot a man he had a personal issue with. Federal courts in both cases found that the two government agents violated clearly established law but are protected by absolute immunity and thus cannot be sued solely because of their status with the federal government.

But one similar case has worked its way up to the justices, who are scheduled to hear it on March 2though it appears they may be poised to make it even more difficult for victims of federal government abuse to achieve any meaningful remedy when their rights are violated.

In 2014, U.S. Border Patrol Agent Erik Egbert followed a man to a bed and breakfast where he was staying in Washington state. That man was from Turkey, and Egbert assumed the guest may have come to the U.S. illegally based on the inn's proximity to the Canadian border.

He was incorrect. But Egbert pursued the man and declined to leave the private property after its owner, Robert Boule, requested that he do so. In response, Egbert pushed Boule into a car and then to the ground, ultimately resulting in injuries to Boule's back that required medical treatment. Boule subsequently filed a complaint with Egbert's supervisor, which the Border Patrol agent countered with threats to sic the IRS on him with a business audita promise he made good on.

It's been almost eight years, and Boule has not yet had his day in court, having spent the better part of the last decade asking the government for the privilege to appear before a jury and ask for damages. Thus far, he's been successful: Both the district court and the U.S. Court of Appeals for the 9th Circuit sided with Boule and said he should have the opportunity to bring a civil suit against Egbert for infringing on his First and Fourth Amendment rights.

That shouldn't be surprising. Under a 1971 Supreme Court precedentBivens v. Six Unknown Named Agents of Federal Bureau of Narcoticsfederal agents may be sued when they violate someone's rights. But in recent years, the high court has proceeded to dilute its own decision in significant ways, now requiring that federal agents may not be sued if a federal judge pinpoints "special factors counseling hesitation." You can see where such a subjective standard might go awry.

It was that standard that shielded Officer Heather Weyker, who conjured the sex trafficking ring, and DHS Agent Ray Lamb, whose gun jammed when he attempted to shootthe man he had a feud with. Neither one received qualified immunity, the legal doctrine that protects certain government officials from civil liability if the way in which they misbehaved has not been "clearly established" in a prior court ruling. Weyker and Lamb did violate the law, as the courts acknowledged. Yet although they were denied qualified immunity, they received absolute immunity and can't be sued simply because of their status as a federal employeesomething that should signify a responsibility to protect the public, not a green light to violate their rights without fear of accountability.

Perhaps in a testament to the egregiousness of Egbert's misconduct, he did not clear the low bar passed over by Weyker and Lamb. So he is requesting that the Supreme Court lower the bar even further. A decision in Boule's favor would "undercut the ability of Border Patrol agents to fulfill their basic mission of securing the border, enforcing the immigration laws, and protecting national security," the government wrote in its petition for review, as if immigration officers must reserve the right to assault people and weaponize their power in illegal ways in order to do their jobs effectively.

"The stakes are very high," says Anya Bidwell, an attorney at the Institute for Justice, a public-interest law firm that filed an amicus brief on Boule's behalf this week. If Egbert succeeds, "this would mean no Bivens remedy in the vast majority of cases. This would mean absolute immunity for federal police and other federal officials."

Based on the Supreme Court's recent jurisprudence on the issue, it appears that scenario may be the likely outcomegiving federal agents carte blanche to break the same rules they are meant to uphold.

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A Border Patrol Agent Assaulted Him and Violated His First Amendment Rights. He May Never Get To Sue. - Reason