Last month, the Sixth Circuit reversed a district court’s grant of summary judgment in favor of six Ohio police officers sued for unlawful arrest and retaliation against the free expression of protected speech.

In 2016, Michael Wood entered a county fair sporting an uncensored t-shirt that read “F**k the Police.” Within a few hours, six police officers and fairgrounds’ director Dean Blair had descended upon Wood asking to see the offending shirt. Although Wood had since covered up or changed out of the t-shirt, the officers heeded Blair’s demand that Wood be removed from the fair.  Wood agreed to go, but not quietly; as he was escorted off of the fairgrounds, Wood leveled profane insults at Blair and the officers and cited violations of his First Amendment right to free speech.  The officers then arrested Wood for disorderly conduct.

Wood sued the officers under 42 U.S.C. § 1983 for First Amendment violations, claiming retaliation and false arrest based on constitutionally protected underlying expression. The district court granted the officers’ motion for summary judgment on qualified immunity grounds. Wood appealed.

On appeal, the court agreed that Wood had presented a viable claim for false arrest. Because Wood’s profane jeers were not accompanied by threatening behavior, the court reasoned that they did not meet the high bar of “fighting words” required for speech to constitute disorderly conduct and justify arrest. The court noted that antagonizing the police with non-threatening insults is less likely to incite violence than verbally abusing a citizen, as law enforcement officers have a duty to keep, rather than breach, the peace, and should not be provoked by “coarse criticism” alone. Additionally, because no bystanders complained about his volume, the court was unable to find that Wood’s actions had caused a noise disturbance constituting probable cause for his arrest. Since the officers violated Wood’s well-established right without probable cause, they were not entitled to qualified immunity, and the court reversed the grant of summary judgment.

The court then applied a three factor test to decide Wood’s First Amendment retaliation claim. First, it found that his speech, though vulgar, is unquestionably protected. Second, it reasoned that Wood’s forcible removal from the fairground was an adverse action likely to “chill a person of ordinary firmness” from continuing to engage in protected speech. With respect to the final factor, the court remanded the issue to district court to resolve a factual dispute as to whether Wood’s protected speech was a substantial or motivating factor in the officers’ decision to eject Wood, as the officers’ claimed he was actually removed for “filming people.” The court also reversed the grant of summary judgment after concluding that a reasonable jury could find for Wood on this issue, an analysis which leaned in part on an officer’s remark to Wood in the squad car following his arrest: “How’s that work?  You got a shirt that says “f the police,” but you want us to uphold the Constitution?” The Sixth Circuit’s unambiguous answer is “yes.”

Wood v. Eubanks, 25 F.4th 414 (6th Cir. 2022).