Sunday, January 05, 2003
Copyright © Las Vegas Review-Journal

EDITORIAL: Free speech and 'caustic' attacks

Federal court allows public officials to muzzle citizens

Reno politicians just can't get rid of Sam Dehne. For years now, the gadfly has been a thorn in their side, to put it mildly.

In 2001, in federal district court, Mr. Dehne won a First Amendment lawsuit against the state Ethics Commission, which had fined Mr. Dehne $5,000 for filing a "false" complaint against Jeff Griffin, then the mayor of Reno. Mr. Dehne's complaint had alleged that Mr. Griffin -- who operates a business at the local airport -- violated conflict of interest laws when he met in Texas with the director of the Reno airport. The court ruled that the fine was an attempt to stifle Mr. Dehne's free-speech rights.

Even so, the courts aren't finished with the gadfly. He has again filed a First Amendment lawsuit against the city after he was expelled from a June 1999 City Council meeting. It wasn't the first time Mr. Dehne has been kicked out of the council chambers, but on this occasion he insisted on being allowed to comment on a proposal to televise airport authority meetings. After engaging in a shouting match with the mayor -- Mr. Griffin called him a "clown" -- Mr. Dehne was removed from the room.

On Monday, U.S. District Judge Larry Hicks OK'd the expulsion, ruling that Mr. Dehne's "ranting" prevented the meeting from being conducted in an orderly manner; such demonstrative behavior, the judge said, is not protected by the First Amendment.

Fine. A policy-making body should certainly have the authority to efficiently conduct its business, so long as it allows open and robust feedback from the public.

Unfortunately, though, Judge Hicks went further, ruling that "caustic personal attacks on public officials" are not protected by the First Amendment. It's acceptable to criticize an official in his capacity as an agent of the government, he ruled, but calling a state functionary names cannot be allowed.

Please. This is a blatant attempt to silence an individual based on the content of his speech, which higher courts have consistently found to be unconstitutional.

As Supreme Court Justice Felix Frankfurter wrote in the 1944 Baumgartner v. U.S. decision, "One of the prerogatives of American citizenship is the right to criticize public men and measures -- and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation." Judge Hicks' decision cannot be reconciled with this.

The ruling is also ripe for appeal because it will be subjectively enforced. Deputy City Attorney Craig Skau told the Gazette-Journal if a member of the public disrupts a future council meeting, the mayor or some other presiding officer will make a determination on the spot whether the criticism constitutes a personal attack or is instead a complaint about the person in his capacity as an office-holder.

This decision is an open-ended invitation for elected officials and bureaucrats to muzzle citizens who wish to participate in public policy-making. Anyone who gets hot under the collar about an agenda item of any government agency is now fair game to be tossed from the proceedings.

The First Amendment guarantees the right of any individual to seek a redress of grievances from the government. This decision mocks that solemn pledge ... and when Mr. Dehne's appeal is heard, the ruling should be reversed, quickly and absolutely.