The protection guaranteed to pure speech — words that are spoken or written — under the First Amendment, particularly as they pertain to legal observers at protests, is the subject of current petitions before the Supreme Court. The contentious issue raises questions about the perceived impunity of law enforcement during protests and the rights of individuals, specifically legal professionals, to communicate their monitoring presence at such events.
A case that highlights the issue dates back to August 19, 2015, when police shot and killed 18-year-old Mansur Ball-Bey in St. Louis, Missouri. The event triggered protests, which were monitored by Sarah Molina and Christina Vogel, two attorneys who were part of the legal observers’ team representing the National Lawyers Guild. Identified by distinctive green hats, these observers attempt to document how protestors’ civil rights are being upheld at demonstrations.
Blasted towards the two attorneys with tear-gas canisters from a Ballistic Engineered Armored Response (BEAR) truck, Molina and Vogel argued that the city and the police officers operating the BEAR had violated their constitutional rights to free speech and assembly under the First Amendment. Yet, despite the federal district court in Missouri ruling in their favor and allowing their claims to head to a jury, the officers appealed. The U.S. Court of Appeals for the 8th Circuit overturned the initial decision, siding with the officers on the grounds of qualified immunity. The court of appeals’ ruling asserts that First Amendment protection only applies if the observers intended to convey a specific viewpoint recognizable to potential viewers. The court found that it was a “close call,” but ultimately ruled the observer’s hats did not offer First Amendment protection given that not everyone would interpret their purpose correctly.
The case, dubbed Molina v. Book, has now been taken to the Supreme Court with a request to review and reverse the 8th Circuit’s decision. Molina and Vogel are pushing for clarity on whether words on clothing are protected speech solely if they communicate a specific message. According to them, the current judgment seems to offer the government excessive power to limit or retaliate against speech that might be slightly ambiguous. They also wish for the court to evaluate whether the doctrine of qualified immunity should be reconsidered, especially given the newly available historical evidence.
This case is presently among several petitions awaiting Supreme Court review. Deliberation on the subject is likely to contribute significantly to First Amendment jurisprudence, especially in contexts involving public demonstrations and legal observation. More details about the case can be found in the original report at SCOTUSblog.