An Ohio man who claimed local officials kicked him out of a county fairgrounds and arrested him for disorderly conduct in retaliation for his t-shirt may proceed with his First Amendment retaliation claim, a federal magistrate has ruled. 

Police ask man wearing t-shirt with profanity to leave fairgrounds

In July 2016, Michael A. Wood entered the Clark County Fairgrounds wearing a t-shirt with the message “f..k the police.”  Wood claimed that two police officers accosted him upon seeing his t-shirt.  Later, a Clark County Fair Board member and several police officers asked Wood to leave the Youth Building and the Fairgrounds. 

Wood unleashed a torrent of profanity

As they were removing Wood from the premises, Wood contends that several of the officers used physical force to remove him.  Ultimately, the officers charged Wood with disorderly conduct and obstruction. 

The state dismissed both charges.   

Man alleges violation of free speech rights

Then, Wood filed a civil rights lawsuit, alleging that the government officials violated several of his constitutional rights, including his right to freedom of speech. The government officials filed a motion for summary judgment.

On Feb. 11, 2020, U.S. Magistrate Sharon L. Ovington dismissed some of the claims but did not dismiss his First Amendment retaliation claim.   

“Plaintiff – by wearing a shirt that said ‘f..k the police – engaged in constitutionally protected speech,” Ovington wrote in Wood v. Eubanks.  She cited the U.S. Supreme Court’s decision in Cohen v. California (1971) in which the Court reversed a breach of the peace conviction of a man who wore a jacket bearing the words ‘F..k the Draft” in a Los Angeles County Courthouse.

“Plaintiff’s allegations, if proven at trial, could be taken by a reasonable jury to support his claim that Defendants were motivated to surround and require him to leave in part because” of the message on his shirt, the magistrate wrote.

Judge rejects argument that profane words were fighting words

She also refused to dismiss Wood’s claim for false arrest in violation of the Fourth Amendment.   This claim intersects with the First Amendment, because the officers claimed they had a right to arrest Wood because he committed disorderly conduct and engaged in fighting words – words that the Supreme Court defined in Chaplinsky v. New Hampshire (1942) as “words which by their very utterance inflict injury or cause an immediate breach of the peace.” 

However, Ovington reasoned that Wood’s profane comments did not rise to the level of fighting words because police officers are held to a higher standard and must exercise restraint when confronted by angry individuals.She wrote that Wood’s statements “although certainly disrespectful and insulting at times, do not rise to the level of fighting words and are thus entitled to constitutional protection.”

David L. Hudson, Jr. is a First Amendment Fellow at the Freedom Forum Institute and a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017).