Protected protest not baked in a pie

Sunday, April 1, 2012

The First Amendment can protect many different forms of “expressive conduct” — actions that convey reasonably understandable messages. Such can include dancing nude before an audience at a gentleman’s club, burning the American flag as a form of political protest and wearing armbands to protest a war. But the first 45 words of the Bill of Rights don’t protect all forms of expressive conduct.

Many litigants have learned this lesson in the rich history of First Amendment jurisprudence. Robert Irwin Greenberg, a self-described activist, was one of them. Some 20 years ago he hurled or thrust a pie into the face of Minnesota State Sen. Carol Flynn, chair of the Transportation Policy Committee, to protest the rerouting of a highway. Greenberg planned his act well. He bought his pie, dressed in a suit and concealed his purchase in his computer case. He then patiently waited outside the Senate building, where in the presence of more than 20 people, he discharged the lemon coconut cream pie into Flynn’s face while yelling: “Stop cultural genocide, stop the reroute of Highway 55.”

Police arrested Greenberg and charged him with assault, disturbing the Legislature and disorderly conduct. In 1990 a jury amazingly acquitted him of assault but convicted him on the other two charges. He initially was sentenced to a year in jail and a $3,000 fine. He also had to stay away from the Legislature for a year. The trial court stayed the felony-long jail sentence provided that Greenberg serve 60 days, perform 150 hours of community service and pay the senator’s out-of-pocket costs.

Greenberg appealed, contending that his act of throwing the pie (or pushing it, as he contended) was a form of political speech entitled to the protections of the First Amendment. The Minnesota appeals court thought differently in its opinion in State v. Greenberg (2000), focusing on the physical act of propelling the pie. “It was [Greenberg's] act in pushing the pie into Flynn’s face, not his concurrent statement, that led to his conviction.”

Greenberg simply could have yelled at the senator (provided he didn’t threaten her) and thereby voiced his political opposition to her positions. He didn’t need a pie to make his point.

He might have been better off eating it.

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