It shouldn’t need to be said, but it bears repeating: the First Amendment definitely protects speech the listener doesn’t like.
This holds true even if the one doing the speaking is personally and professionally unlikable. There’s some backstory to this First Amendment retaliation suit, which explains why certain government employees might have wanted to arrest someone for talking. But nothing can explain actually following through with that fantasy.
This lawsuit (coming to us via FourthAmendment.com) begins in the Trumbull County (Ohio) Board of Commissioners. The Board has three elected members and must hold at least 50 public meetings every year. For most of the past three decades, the Board of Commissioners has been the home of registered Democrats. That changed in 2020, when Niki Frenchko was elected. She was a Republican and ran on a platform of (quoting directly here) “disrupting the entrenched practices of county leadership.”
Disrupt, she did. But her disruption was generally along the lines of annoyance rather than upending the Board’s “entrenched practices.” Here’s how things were going shortly before the Constitution got dragged into it. From the opinion [PDF]:
In her own words, Commissioner Frenchko has “been critical” of her colleagues and “embarrassed [them] by . . .exposing how they’ve been doing business . . . over their terms in a very inept and corrupted way.”
At meetings of the Trumbull County Commission, Commissioner Frenchko and her two colleagues often sparred. Even disagreements over policy often devolved into arguments during which the commissioners interrupted one another. Often, the meetings descended into personal insults. For example, at public meetings Commissioner Fuda referred to Commissioner Frenchko as “this lady.” During one public meeting, he held up photographs to Commissioner Frenchko of the trash can in the women’s restroom containing used tampons.
Lovely. And then the Sheriff’s Department became part of this uncivil discourse. Frenchko read a letter purporting to be from the mother of a local inmate claiming the jail had failed to provide adequate treatment for her son’s meningitis, resulting in partial deafness and other injuries. Sheriff Monroe responded with a letter of his own, criticizing Frenchko for reading the letter into the record without bothering to investigate whether the allegations were true.
Commissioner Fuda read this letter at the next meeting (without the Sheriff’s knowledge or permission). Well, he attempted to. Frenchko loudly objected to the Sheriff’s letter being read. And by “objected,” I mean “acted like an entitled child.”
Demanding that Commissioner Frenchko stop interrupting, Commissioner Fuda banged his gavel and raised his voice. Commissioner Frenchko continued to interrupt the clerk, mocking the clerk and bringing her to tears. As she continued interrupting, people in the audience urged Commissioner Frenchko to stop upsetting the clerk. At one point, Commissioner Frenchko left her seat to record the clerk from a better angle because Commissioner Fuda held up a piece of paper to obstruct her from recording the clerk.
This culminated in the other commissioners utilizing the two deputies on security duty to remove Frenchko for “disrupting” the meeting. They not only removed her (while she continued her criticism of Sheriff Monroe) but arrested her for “disturbing a lawful meeting.” She was processed and released. Charges were brought but were rejected by the court, which dismissed them without prejudice.
This arrest deals with the tip of the iceberg. If you’re so inclined, the opinion contains several pages detailing the sort of impropriety, infighting, and general childishness all commissioners engaged in, including one verbal altercation bearing this intriguing heading:
D.4. Salsa Dancing Incident
The defendants argued Frenchko’s removal and arrest were justified. The court disagrees. It was the form the disruption took that matters. This wasn’t just any disruption. This was the sort of thing that always retains the utmost in free speech protections.
Without question, the disruption that led to Commissioner Frenchko’s removal and arrest was her speech itself. And not just any speech. The speech of an elected official, delivered at a public meeting, addressing a matter of public concern. Speech that communicated a message disfavored by those in power. Speech highly critical of another elected official. Contrary to Defendants’ argument, this record does not permit disentangling Commissioner Frenchko’s speech from the disruption she caused. Here, they are one and the same.
Yes, it’s true some semblance of order is needed to engage in the business of government. But the lead commissioner had several options but chose to have the deputies attending the meeting arrest the commissioner he couldn’t get to shut up.
As the presiding officer, Commissioner Fuda had ample tools available, such as adjourning, taking a break, or even a formal reprimand—all short of arrest—to protect the government’s interests in running an orderly meeting. Indeed, “elected bodies in this country have long exercised the power to censure their members” unimpeded by the Constitution’s speech protections. Of all the tools available, Defendants used one that would chill any ordinary person or public official from continuing to question the Sheriff’s performance of his duties—an arrest.
It all circles back to the opening sentence of this order:
Here in America, we do not arrest our political opponents.
Well, we do. Obviously. But we shouldn’t (barring any actual criminal activity). The lawsuit will now move forward for consideration by a jury. No qualified immunity. No dismissal of the First and Fourth Amendment claims. And the defendants’ inability to secure a dismissal will absolutely lead to several more contentious board meetings. But no matter how much any of these commissioners may not like what’s being said, it should be clear — even without a final order in this case — that having them arrested is no longer an option.