Foul language doesn’t invalidate petition, court rules

Friday, November 18, 2011

A citizen’s right to petition government includes the right to refer to the government employees he is petitioning as boobs, idiots and assholes.

So ruled the 10th U.S. Circuit Court of Appeals in Klen v. City of Loveland, Colorado, in which the court on Nov. 15 reinstated a contractor’s claim that city officials had retaliated against him for questioning their competence.

At its core, Klen involves a contractor increasingly frustrated by delays in the processing of his applications for building and other permits. As the delays mounted, the contractor and his employees met with many city officials over the course of nine months. During those meetings, the contractor and his representatives complained they were being treated “like shit,” called the city attorney a “boob,” labeled the building official an “asshole” and an “idiot” and demanded their “fucking permit.”

In response, the contractor claims, the city officials delayed the applications even further, assessed him inappropriate permit fees, forged a permit application and charged him with bogus permit violations. The contractor then sued in federal court in Colorado, alleging, among other claims, that the city officials had illegally retaliated against him for exercising his First Amendment rights.

The trial court dismissed the contractor’s First Amendment claim, holding that the contractor’s “protestations were not public statements” and thus not entitled to constitutional protection.

Recognizing that the ruling could be interpreted in two ways — that the statements were not protected because they were made privately or that the statements were not protected because they did not deal with matters of public concern — the appellate court adopted the second interpretation.

The 10th Circuit court, however, then reversed the trial court, holding that speech of private citizens (unlike speech of public employees) need not be about a matter of public concern in order to be protected by the First Amendment.

The circuit court then addressed the city’s claim that the contractor lost his constitutional protection because his insults were analogous to “fighting words” that have been deemed to be outside the First Amendment since the U.S. Supreme Court’s 1942 decision in Chaplinsky v. New Hampshire.

“Fighting words,” the court in Klen said, quoting its 1993 decision in Cannon v. City and County of Denver, are “epithets (1) directed at the person of the hearer, (2) inherently likely to cause a violent reaction, and (3) playing no role in the expression of ideas.”

The contractor’s statements, the court concluded, were not “fighting words” because, especially in the “rough-and-tumble world of the construction trade,” they expressed ideas, were not likely to provoke physical retaliation and were not accompanied by provocative gestures or threats.

Moreover, the court noted, the fact that government employees might be offended by a citizen’s speech is not enough to defeat a retaliation claim, as “[o]ne does not usually retaliate unless offended.” If mere offense were enough to render insults “fighting words,” then “Chaplinsky would arguably swallow the whole tort of First Amendment retaliation.”

Because the trial court had considered only whether the contractor’s speech was protected and not whether the city had retaliated against him as a result of that speech, the appellate court remanded the case to the trial court for consideration of the retaliation issue.

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