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Sep 16 2015

Fed Ct: 1st Amendment Protects Profanity Written on Speeding Ticket

We’ve all been there – you get a speeding ticket you feel you didn’t deserve (basically every speeding ticket ever written to me) and you just wish you could tell the Traffic Agency to “F*ck Off” as you mosey up to the window to pay your fine. Well, three years ago, Willian Barboza, who was a 21-year-old student at the time, did one better when he received a speeding ticket in Liberty, New York. When he mailed in his payment to the Town Clerk, he scrawled “Fuck Your Shitty Town Bitches” on the payment form. In a clever, insightful move, he scratched out “Liberty” and wrote in “Tyranny” on the ticket as well. Here’s a shot of Mr. Barboza’s handiwork:

Eloquent

Isn’t truth a defense?

The clerk gave the form to Judge Brian P. Rourke who was not amused and who promptly ordered Barboza to appear before him on October 18, 2012. At the appearance, Judge Rourke charged Barboza with Aggravated Harassment and Barboza was him held on $200 bail. Barboza spent five hours locked up waiting for the bail to arrive. Luckily for him, Judge Rourke recused himself from hearing the case since he was a party to the action. When the case eventually came to trial in March of 2013, Judge Ivan Kalter summarily dismissed the case stating:

“No [legal] citation is necessary for this Court to determine that the language under the circumstances here, offensive as it is, is protected.”

Yeah, after all you only need look at the very First Amendment. In declining to dismiss his Federal Civil Rights claim against the Town of Liberty Judge Cathy Seibel of the Southern District of New York wrote:

[T]hough crude and offensive to some, [what Barboza wrote] did not convey an imminent threat and was made in the context of complaining about government activity. The words here are not inherently likely to provoke violent reaction, they were not directed at anyone in particular, and could not be interpreted as threatening any particular action. ”

There is lots to take away from this case but here is my top three:

(1) So much of what happens in law can be luck of the draw. Had Judge Kalter been the first judge who got the complaint, the case would never had been brought;
(2) Clerks cannot make law but “Clerk law” is every litigator’s nightmare. Clerks will reject your papers, demand more paperwork than the law requires, or make you do things in a different way than you have done it for 30 plus years because “That’s the way we do it here.” Believe me that Kentucky clerk Kim Davis is not the only clerk who does what she wants regardless of what the law says. So here, some clerk thought this was a crime and next thing you know, a guy’s arrested and prosecuted for no reason;
(3) Even though this was almost entirely the judge’s and the prosecutor’s fault for choosing to ignore the First Amendment they cannot be sued because they are protected by immunity. While immunity is important so that these public officers can act in the way they think is right without fear of constantly being sued, there ought to be an “extremely asinine” exception to immunity when the conduct is this outrageous. Judge Rourke is still on the bench and even got a big raise recently

2 comments

  1. Frank Furter

    Seems to be going around.

    “Man arrested for disparaging police on Facebook”

    http://arstechnica.com/tech-policy/2015/09/man-arrested-for-disparaging-police-on-facebook-settles-suit-for-35000/

    1. Oscar Michelen

      Thanks for sharing that story

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