No Qualified Immunity for Arrest over “Fuck Trump” and “Fuck Biden” Flags

From Sheets v. Lipker, decided Monday by Judge John Badalamenti (M.D. Fla.):

This case is about words—specifically, a four-letter expletive that has vexed legal authorities and amused teenagers for generations. Plaintiff Andrew Sheets, proceeding pro se, alleges that Officer David Joseph Lipker violated his First Amendment rights by citing him for displaying signs bearing the word “Fuck” in a public place….

Because this case is before the Court on a motion to dismiss, we accept the factual allegations in the complaint as true. Back in 2021, Sheets stood on a public sidewalk in Punta Gorda. He was there to protest. To make his point, he displayed two flags: one reading “Fuck Trump” and the other “Fuck Biden.” He also wore a shirt emblazoned with the phrase “Fuck Policing 4 Profit.”

Officer David Joseph Lipker approached Sheets and issued him a citation for violating City Ordinance 26-11.5(z), which prohibited the public display of obscene signs. The citation was allegedly issued because of the language Sheets displayed, and Defendants do not contend otherwise. Lipker then ordered Sheets to leave the sidewalk. Sheets complied, packed up his flags, and left….

Long ago, the Supreme Court settled the question of whether the government may act as the guardian of public morality by banishing the word Fuck from the public square. In Cohen v. California (1971), the Court considered the conviction of a man who walked through a courthouse corridor wearing a jacket bearing the words “Fuck the Draft.” The State of California argued, much as Officer Lipker decided here, that such language was offensive conduct that disturbed the peace. The Court disagreed. It held that the “simple public display” of this “single four-letter expletive” could not be made a criminal offense consistent with the First Amendment. The Constitution, the Court explained, leaves matters of taste and style largely to the individual, recognizing that “one man’s vulgarity is another’s lyric.” In the decades since, the law has been made clear: the state may not censor a citizen for public display of the word “fuck.” See Mahanoy Area Sch. Dist. v. B. L. by & through Levy (2021)….

Officer Lipker asks for a free pass because he was enforcing an ordinance, but he enforced it against speech that has been protected for generations. He argues he did not mean to retaliate, but his citation targeted the very words he determined offensive. And he claims no harm was done, even though he silenced a citizen in the public square. None of these defenses hold water at this stage. When Officer Lipker cited Sheets for the content of his speech, he crossed a constitutional line that was drawn long ago….

Civility is a virtue, but it is not a legal requirement for political protest. When Officer Lipker cited Sheets for his choice of vocabulary, he ignored well-settled precedent protecting the very speech he sought to punish. He is not entitled to qualified immunity for that error….