Mimesis Law
25 August 2019

Clowns, the Police, and Free Speech

October 7, 2016 (Fault Lines) – Clowns are creepy, and are making the news lately so that everyone is commenting on them. They are being reported in cemeteries near college campuses, being used to threaten schools in California, and have led to multiple arrests, mainly for making false reports to the police. So this has become somewhat of an internet, social media firestorm. On my lawyer Facebook groups there have been comments from colleagues. Some warn friends that this is Texas, and dressing like a clown could get a person shot. Others talk about not taking any chances, and the County Sheriff in Midland County warns that the “fools” could get shot.

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So when a local police officer in Denton, Texas makes a comment about clowns and shooting them, everyone is in an uproar. Really? Look, we all understand that clowns creep out people, and even that Denton has had to deal with clown threats. But investigating an officer for making a post to social media on a matter of public interest? That’s crap, and it violates the officer’s First Amendment right to free speech. You see, while the government can limit the speech of their employees in some limited ways, they are not allowed to silence officers completely.

That’s well established law, by the way. You see, police officers have a right to speak too. You can’t discipline them because they say something that the chief doesn’t like. Hell, if that were the case, I would have been fired dozens of times. So would a bunch of other officers I know. But I’m not going to cover the law again, it hasn’t really changed from the last time I covered this issue.

So Latrice Pettaway suggested that someone “[p]op a cap in the first clown you see” and that if we could “just hit one and the rest of these fools will learn.” OK, does anyone see much of a difference between the statement by Sheriff Gary Painter that someone is going to shoot one of these fools and the statement by Officer Pettaway? The biggest difference is that one statement is made by the agency head, and one by an officer.

Well, hell, we can’t have officers making comments that the public might see! That’s why the Denton Police Department has a policy about social media. Their press release on the issue states that the department policy is that:

Department employees must be mindful of the negative impact of inappropriate or unauthorized postings upon the Denton Police Department and its relationship with the community.

Then the department goes on to say that a violation of policy could lead to disciplinary action. What that means is that if the chief is sufficiently pissed off, he will try to hammer the nail that is Officer Pettaway. You see, most officers don’t know enough about their rights, and of those that do, some don’t see it as important enough to fight the chief over. Because there are consequences when you make a chief back down. The officer will pay a price, maybe not for the speech in question, but for any other violation that they can find.

And Pettaway’s post has brought attention to the department. Some clown has called for her firing for a comment that was obviously a joke.[1] Others are merely talking about the comment, or about clowns, fake threats, etcetera. Disciplining her would be the wrong thing to do. The post wasn’t inappropriate, it was funny, in the dark humor way that cops have. When I saw the first article quoting it, I laughed—until I saw the article mentioning a possible internal affairs investigation.

The post was, in fact, unauthorized. So what? She doesn’t have to get approval from the chief to speak her mind on issues of public interest. And the department doesn’t get to retaliate against her for exercising her first amendment rights.[2]

I know a good number of Denton officers and administrators. Some are very good people, some are slugs in a uniform—but that is the same at any police department. I do not know Pettaway, she was hired well after I left police work and well after I have had meaningful contact with officers and friends in Denton. I don’t even know if Pettaway is a good officer or not, and I haven’t asked or been remotely interested in her job performance because to be frank, it’s not germane to her comments on Facebook.

And while her comments may cause embarrassment to the Denton Police Department, that’s not the relevant issue. The relevant issue is that the public employer does not use its power to silence officers because the employer or its supervisors do not like the content of the employee’s speech.

While I’ve often agreed with the proposition that wearing a badge doesn’t grant an officer any extra rights, I’m adamant that wearing a badge doesn’t take away your rights. Pettaway had a perfect right to say what she said. The Denton Police Department should have said so, and told any clown-loving critics to pound sand.

[1] There is a shirt for dads that mention if you pop a cap in the first boy to date your daughter, the word will spread; but you don’t see people doing that. It’s because it’s a joke. Stories about me meeting my daughter’s boyfriends while in full uniform and bringing in my shotgun over my arm from the take-home squad car are just vicious, mean-spirited rumors without any evidentiary support.

[2] OK, I lied. I will mention a SCOTUS case that just came out, Heffernan v. City of Patterson, 136 S.Ct. 1412 (2016), which although on a different type of speech, is still clear that police officers may not be punished for exercising free speech.

7 Comments on this post.

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  • bacchys
    7 October 2016 at 12:48 pm - Reply

    Even if her comment wasn’t a joke, so what?

    It’s not a threat to predict someone is going it “pop a cap” into someone else, especially when both someones are simply hypothetical.

    • Greg Prickett
      7 October 2016 at 2:33 pm - Reply

      That’s pretty much my view.

    • Donald
      7 October 2016 at 5:21 pm - Reply

      Have to point out that the “pop a cap” comment was responding to another comment of “what am I supposed to do”.

      I’m pretty damn certain that that exchange would happily be used against an ordinary citizens by police and prosecutors.

      The comments are totally inappropriate, a suspension completely called for.

      • Greg Prickett
        7 October 2016 at 11:06 pm - Reply

        I’m pretty damn certain that that exchange would happily be used against an ordinary citizens by police and prosecutors.

        For what crime? It’s free speech, no matter who says it. There are hundreds and thousands of people who have posted much worse on Facebook about what should happen to clowns.

        She could explicitly state that every clown in the nation should be strung up at the end of a rope, and it’s not a crime, nor otherwise actionable.

        It’s called free speech. The state isn’t allowed to punish her for using it.

  • Brad
    8 October 2016 at 2:15 pm - Reply

    Maybe the comment shows that she is too fearful to be popo. Maybe the comment shows that she is too quick to anger to be popo. Certainly police officers can be fired for lacking courage, or for being too quick to anger.

    The upside is: for every police officer fired for lacking courage, a bunch more learn to be more courageous.

  • Tom H
    8 October 2016 at 2:21 pm - Reply

    Maybe it should be free speech, but Donald is right. If I post on social media somewhere that “you should pop a cap in a cops ass and teach those clowns a lesson.” I have a really really good chance of being arrested by the cops. I might be able to prevail in court, but it will cost a pretty penny to defend my free speech rights. The cops won’t care if I win, because it will be one of those cases of beating the crime but not the ride.

    I have no problem with this idiot being handed a cardboard box and told to get her stuff and hit the road. She is easy to replace and I would feel safer if she had some other type of employment. God knows we have enough morons that think you should do anything a cop tells you to do, including shooting clowns. Totally inappropriate for a police officer.

  • andrews
    9 October 2016 at 3:01 pm - Reply

    Agree, it is a free speech issue. The question appears by now to be well settled.

    None the less, at least personally, she may have this as potential background. If she winds up shooting anyone in the next few years, this will likely come back up. The jury will probably see it as relevant to show intent and motive.

    In a claim for damages against her, I have no problem with this. If I were the city attorney, on the other hand, this sort of thing lurking might make me a little nervous.