A West Virginia man did not have a valid First Amendment-based defense to obstructing an officer, assault on an officer, and public intoxication, the West Virginia Supreme Court of Appeals ruled. Instead, the court said the arresting officer had probable cause to arrest the individual.
The incident arose on Jan. 5, 2019, when Officer Aaron Dalton of the Westover Police Department encountered a man walking by Dalton’s car who flipped him off and uttered profanity at him. Dalton testified that he asked the man, William A. Cox II, “what his problem was.”
Dalton said Cox replied: “F— you. I can say f— you as many times as I want to and there’s nothing you can do about it.” Dalton told Cox to leave. Cox instead approached Dalton’s vehicle and continued to curse at the officer. Dalton claimed that Cox became more belligerent and showed obvious signs of intoxication, leading to the arrest.
A magistrate judge conducted a bench trial (a trial without a jury) and found Cox guilty. Cox appealed to a circuit court, which also found him guilty in a bench trial on Feb. 20, 2020.
Cox then appealed to the state high court and argued in part that he was arrested in retaliation for offensive but protected speech. However, the West Virginia Supreme Court of Appeals affirmed the convictions in its Jan. 20, 2021, opinion in State v. Cox.
The appeals court acknowledged that the First Amendment protects a great deal of criticism toward government officials, including police officers. However, the U.S. Supreme Court established in Nieves v. Bartlett (2019) that generally for a defendant to establish that he was arrested in retaliation for protected speech, he must show the absence of probable cause for the arrest.
This probable-cause requirement doomed Cox’s First Amendment-based defense, according to the court, because Officer Dalton had probable cause to arrest Cox for his unruly behavior.
Cox argued that Dalton had violated the First Amendment in that he stopped him because of his offensive gesture and profane speech. The appeals court disagreed.
Even assuming Cox’s profanity was protected speech, the court said, “the evidence presented at petitioner’s bench trial was sufficient to demonstrate, beyond a reasonable doubt, that petitioner was not stopped by Officer Dalton for making those statements and exercising his right to free speech,” the court wrote. “Rather, [Cox] was stopped by Officer Dalton because Officer Dalton reasonably suspected petitioner was committing a crime, to wit: public intoxication.”
The appeals court concluded: “The facts establish that the basis for Officer Dalton stopping petitioner was his reasonable suspicion that petitioner was intoxicated in violation of West Virginia [law]. Officer Dalton did not stop [Cox] because [Cox] was exercising his right to free speech.”
David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let The Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech (2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).