Sheriff Thinks He Can Use Bogus Disorderly Conduct Charges To Shut Down Speech He Doesn't Like

from the christ,-what-an-asshole dept

A Texas sheriff did some pandering to his base this week, ultimately making a fool of himself. On Monday, Sheriff Troy Nehls posted the following to Facebook:

If you can’t see it, it’s a photo of a truck with a decal attached to the rear window. The decal reads:

Fuck Trump and fuck you for voting for him

Here’s what Sheriff Nehls wrote:

I have received numerous calls regarding the offensive display on this truck as it is often seen along FM 369. If you know who owns this truck or it is yours, we would like to discuss it with you. Our Prosecutor informs us she would accept Disorderly Conduct charges regarding it, but I feel we could come to an agreement regarding a modification of it.

This is stupid on every single level. First off, as former police officer and current attorney Greg Prickett points out in his post at Simple Justice, there’s no way those charges would stick.

Sheriff, that’s political speech, and it’s protected speech. You don’t get to silence it because you don’t like it, or even because it offends you, the District Attorney, or anyone else. The Disorderly Conduct statute in Texas is very clear on this.

You can charge someone with Disorderly Conduct if “the language by its very utterance tends to incite an immediate breach of the peace,” or if the “display tends to incite an immediate breach of the peace…” That hasn’t happened here. If Fonseca and her family have been driving around for almost a year and there have been no fights, no disturbances, no riots or so forth, you are not going to be able to prove that there was a danger of an “immediate breach of the peace.”

Instead, Nehls may have rained down fire on his own idiotic head by pursuing it.

What you may have, instead, is another crime, a much more serious crime, being threatened by Sheriff Nehls. If Nehls goes through with his threat, it could very well meet the elements of the offense of Official Oppression, which states:

(a) A public servant acting under color of his office or employment commits an offense if he:

(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;

(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful…

Now, let’s get to the rest of the moronic post.

It is highly doubtful the Sheriff has “received numerous calls” about a window decal. Even given the sorry state of Americans’ understanding of the First Amendment, most people would realize a sweary decal is not a law enforcement issue. More likely, the Sheriff or one of his deputies spotted it and took a photo or, at best, a concerned citizen sent it to the apparently pro-Trump Sheriff in hopes that he would abuse the law to shut down protected speech. (If so, well played, citizen. Everyone loves an American who believes in less rights for people they don’t agree with.)

Next, the “discussion” proposed by the Sheriff is a bait-and-switch. Unlike most bait-and-switch purveyors, Sheriff Nehls is too excited about prosecution to allow the bait to do its work. By pitching it as a voluntary interaction, Nehls covers his ass on official oppression. But he immediately uncovers it by referring to a prosecutor just dying to punish protected expression with a bogus disorderly conduct charge.

That brings us to perhaps the stupidest part of Nehls’ post. Nehls states a prosecutor is willing to move forward with charges. That appears to be a lie.

KHOU 11 News also reached out to the Fort Bend County District Attorney.

He says the Sheriff never consulted him before posting the suggestion the driver may be charged with disorderly conduct.

He made it clear his office would not accept charges against that driver simply because of the profanity and message on the truck.

It’s unclear who Nehls is referring to. This prosecutor is a he (Nehl’s post refers to a “she”), and he apparently would be in charge of prosecuting cases brought to him by the Sheriff. I suppose he could be referring to one of the other prosecutors in the DA’s office, but all cases would presumably be signed off by the DA himself before moving forward. If one of them offered to help the Sheriff fight his battle against the First Amendment, they would be aiding and abetting official oppression.

Having outed himself as a law enforcement official willing to oppress speech under the color of law, Nehls gracelessly deleted his Facebook post. He then went on to issue a statement to the effect of “I just wanted to talk to this person about their bumper sticker… but with the dangling threat of prosecution as a backdrop.”

Nehls addressed the post in a press conference Wednesday afternoon.

“People have called and are offended by the language,” said Nehls. “I simply want to talk to the owner and say ‘Look the last thing we need to do is have anyone have any confrontation over the language on your truck.'”

But this can’t possibly be true. If all Nehls wanted to do is talk, he had plenty of time to do so. And he could have done it without dragging the vehicle owners into his social media debacle. But it appears he’d rather grandstand on Facebook than do actual police work and, you know, track down the owners of the vehicle. Even with the head start of license plate database access and its favored route of travel, the local news team managed to be the first people to actually talk to the truck owners.

KHOU 11 News tracked down the owners of the truck, Karen and Mike Fonseca. They are stunned and angry that Nehls would start this debate on Facebook instead of calling them personally.

They say they’re entitled to their free speech.

“There’s no law against freedom of speech, nothing in the law book here in Texas, I’ve been stopped numerous times, but they can’t write me a ticket,” said Karen Fonseca.

The truck owners are more right in two sentences than Nehls was in a Facebook post and ensuing press conference. They are definitely right to be angry about Nehls’ casual abuse of office that turned them into targets for hate from like-minded fans of free speech curtailment.

Above all else, Sheriff Nehls is a disingenous asshole.

The sheriff said he wants to avoid a situation where somebody could take offense to the sign on the truck, possibly leading to a confrontation.

“I don’t want to see anything happen to anyone,” Nehls said. “With people’s … mindset today, that’s the last thing we need, a breach of the peace.”

Then why the fuck would you post a photo of the truck and decal to Facebook? You’re just begging for a “breach of the peace.” You’ve turned the owners into a target for pro-Trump partisans and people who like to yell at other people for public swearing. You pulled some petty bullshit under the color of law and have the audacity to claim your foremost concern is the truck owners’ safety. If this is what the public gets to see of your mindset and retaliatory nature, one can only imagine what goes on behind the scenes.

Nehls says he wants to “come to an agreement regarding a modification” to the anti-Trump decal. I can suggest one, but I doubt the Sheriff will like it.

And, of course, as I put the finishing touches on this post comes the news that Fonseca has been arrested — though for an outstanding warrant.

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Comments on “Sheriff Thinks He Can Use Bogus Disorderly Conduct Charges To Shut Down Speech He Doesn't Like”

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69 Comments
Anonymoussays:

"Jail Her!" -- Don't you get a trifle irritated at that?

Of course you do.* You have a double standard internally, no matter how committed to free speech you may be on the outside.

So — if honest — you’d agree with the general principle of NOT advertising incitements to anger. That’s all the Sheriff says. It’s not a “bogus” charge, either.

BUT you have Trump Derangement Syndrome, so rabidly defend anything anti-Trump. — And Law Derangement Syndrome, so rabidly oppose civil society.

(*Assuming human, which I don’t of the alleged Techdirt minion re-writers.)

Anonymoussays:

Re: Re: Re: Re: "Jail Her!" -- Don't you get a trifle irritated at that?

Plus on the chance that you’re referring to Agent Orange himself yelling it, there’s a big difference between a sticker on a truck and gathering a big audience and whipping them into a frenzy.

Now if this guy stood on a podium in the town square and gathered a crowd to storm whatever by chanting the same words, then yes that guy should be prosecuted. That would be the nuance in the situations. You understand that word, right? Nuance. Sound it out if you’re having trouble with it.

Anonymoussays:

Re: Re: Re:3 Re: Re: Re: Re: Re: "Jail Her!" -- Don't you get a trifle irritated at that?

as usual as in, as usual, there is another someone saying they are for freedom of speech and then shows they are against it.

you either support it or you don’t. Most people don’t they just say they do until someone say’s something they don’t like and then agree to someone being silenced.

“Now if this guy stood on a podium in the town square and gathered a crowd to storm whatever by chanting the same words, then yes that guy should be prosecuted.”

You make it clear that your freedom of speech is “conditional” meaning you don’t support the 1st, you just agree with freedom of speech for me, but not for thee.

the 1st does not make freedom of speech conditional, it just makes it an absolute liberty and you don’t agree with that, which makes it “as usual” someone against the 1st amendment.

Palm to Foreheadsays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re: "Jail Her!" -- Don't you get a trifle irritated at that?

Do you not understand the difference between words and actions? The critical clause in the previous post was that the person standing on the podium was gathering the crowd to

–> STORM WHATEVER <–

See? That’s an action! That’s a criminal action! Storming something, presumably with violence IS a crime!
Talking about it as a possibility is not. Even saying ‘this place should be stormed’ is protected speech up and to a point.

Saying words should NEVER be a crime, whether they’re your crazy interpretation of what is going on here or mine.

As a person who has been involved in peaceful demonstrations across the entire country for the last 25 or so years, believe me when I say law enforcement uses this kind of silliness almost every day. They hold people accountable for someone else’s criminal behavior because they don’t like the message that person is espousing. If someone punches you in the nose for the words you have on a sign or banner, if the LEO doesn’t like the words — it’s your fault and you’re guilty of disorderly conduct because you incited them to punch you.

To say that this country doesn’t understand the first amendment is the grossest of understatements.

Anonymoussays:

Re: Re: Re:6 Many Re: "Jail Her!" -- Don't you get a trifle irritated at that?

Do you seriously not understand the difference?

Because speech is protected by the 1st Amendment.

Actions, incitement to riot, are not and quite often there are local laws (DC, States and many cities therein) against that activity. It’s a fine line and difficult to walk at times but many law enforcement do it correctly.

The sheriff threatened prosecution for a sign. The sign said Fuck Trump (and more) which is Protected Speech. The sign does not say Fuck Trump and Let’s Burn Police Cars.

That alone is a violation of the 1st Amendment. It is also oppression in every sense of the word.

If you cannot understand the distinction then you really need to learn to read or read the constitution. Hint: specifically the 1st Amendment.

Matthew Clinesays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re: "Jail Her!" -- Don't you get a trifle irritated at that?

the 1st does not make freedom of speech conditional, it just makes it an absolute liberty and you don’t agree with that, which makes it "as usual" someone against the 1st amendment.

Do you disagree with the law(s) making incitement illegal? Or do you not think that what’s being discussed amounts to incitement?

Matthew Clinesays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re: "Jail Her!" -- Don't you get a trifle irritated at that?

No, wait, sorry. Re-reading, it would seem that you’re fine with incitement being illegal, and also think that the sticker counts as disorderly conduct? That is, you think that "the language by its very utterance tends to incite an immediate breach of the peace," or if the "display tends to incite an immediate breach of the peace?" ?

Anonymoussays:

Re: Re: Re:5 Re: Re: Re: Re: Re: Re: Re: "Jail Her!" -- Don't you get a trifle irritated at that?

The sticker doesn’t incite anything, Incitement is “let’s all Lynch that gay person” with the intention of actually doing so and having people who are willing to do it listening to you. Swearing or discussion is not incitement no matter the language.

JEDIDIAHsays:

Re: Re: Classic example of media spin here.

“Jail her” doesn’t violate local community standards. “Fuck” does. It doesn’t matter what the political context is.

This is why it’s moronic when the coastal urban centers screech that they have the right to run everyone else’s business. You have no clue. You don’t want one. You’re actually proud that you’re ignorant.

Anonymoussays:

Re: Re: Re: Re: Classic example of media spin here.

Local community standards don’t supercede the first amendment. It doesn’t matter what the local context is.

This is why it’s moronic when flyover states screech that they have the right to own a gun. You have no clue. You don’t want one. You’re actually proud that you’re ignorant.

Matthew Clinesays:

Re: Re: "Jail Her!" -- Don't you get a trifle irritated at that?

So — if honest — you’d agree with the general principle of NOT advertising incitements to anger.

I’d agree with the general principle of politeness of not advertising incitements to anger. I most certainly would not agree to the general legal principle of not advertising incitements to anger.

MyNameHeresays:

I think that the message is fine in and of itself. I think that the way it is presented is not so much.

Using the F word in a place where children will (obvious) see it is in poor taste. While I am all for free speech, the same speech could have been made (and understood by adults) if the F word has been spelled out as F–K.

Put another way: Try to put up a billboard with that exact message and exact wording on it, and see how quickly it comes down. Fuck is still an obscenity.

I also think to a certain extent this is more of an example of how low and how dangerous the discourse has gotten in the last decade or so. “Dem’s fightin’ Werds!” is a good way to explain this sort of speech, apparently legal but about as bright as a burned out bulb. These are the sort of people who get shot at or have their vehicle vandalized and go to the media saying “we have no idea why!”.

Is the Sheriff being stupid? More than a bit. He’s not wrong, but there are few laws on the books about painting a target on your own back.

Personally, I would love to see a case like this go to SCOTUS.

AzureSkysays:

Re: Re: Re:2 Re: Re: Re: Re:

untrue, you should really read up on this thing trumps and clintons arent to fond of, the constitution, ๐Ÿ˜‰

also, “obscenity” is very subjective, in my great grand mothers youth, it was still considered “obscene” for women to have exposed ankles/legs in much of the country… now…not so much…to most people….

hell, at least once a day i see somebody calling democrats/republicans obscene…(at least one each way, its amusing…since they both are.. ๐Ÿ˜‰ )

Machin Shinsays:

Re: Re:

The “for the kids” argument is fucking stupid, can we please stop using it already?

You saying there are a bunch of poor kids, old enough to read but sheltered enough to have never heard “fuck” before that will be traumatized by this? Come on, how many kids you know of who give a fuck about a bumper sticker?

Then also if they are so sheltered as to be clueless at this point, then they are with their parents anyways. Parents who certainly are not going to honestly answer when their kid asks “Hey mommy, what’s fuck mean?”

Anonymoussays:

Re: Re:

You know what’s obscene?

Most of Puerto Rico still without electricity, water, or food two months later.

A candidate for the US Senate who has a hobby of pedophilia and rape.

A tax bill that will eviscerate graduate education in the US.

A Hollywood mogul who sexually assaulted women, then intimidated and doxed them.

A President who runs a modeling agency so that he has a ready supply of underage girls to rape.

The murder rate in Baltimore.

Homeless veterans.

Nazis marching on American soil.

Another Keystone pipeline spill, and another, and another, and another…

The mass-shooting-incident-of-the-day.

An administration stocked with people who apparently had more meetings with the Russians than they did with their own party officials.

There are all kinds of obscenities, all around us, that involve human suffering and death, the destruction of the environment, the dissolution of the country. By comparison, “FUCK” on the back of a pickup truck isn’t even a microscopic blip on the radar.

Do you know SCOTUS history?says:

Re: Re:

There are many cases like this that have gone to SCOTUS. They have routinely held that the public transit ways like sidewalks and roads are to be held in public trust for the free expression of ESPECIALLY dissenting opinions on matters of public concern.

Whether you LIKE the way the dissent is expressed, as long as it does not violate the rights of others or break other laws, is utterly, completely, 100%, without a doubt, no questions asked, iron-clad OF NO CONCERN. If you don’t like the words someone uses to express an opinion on a matter of public interest, go express your own words! That’s the answer! Don’t force your lazy assedness on everyone else via government control of the words.

And get off the ‘for the children’ bullshit. If it’s okay for kids to see and have ‘Billy is a boy today but a girl tomorrow’ in the classroom every day of the week, they can see ‘Fuck’ on a truck. Seriously, get over it –it’s a WORD.

JoeCoolsays:

Re: Re: Re: Re: My name here

Not even that for some. I’ve heard 10 year-olds use more and worse swearing AROUND ADULTS than I did as a college student. You hear that language and look at the adult, giving them that ‘Well? Aren’t you gonna do something?’ look, and they either ignore you, or tell you to mind your own business.

Anonymoussays:

Re: Re: Re: Re: Re: Re: My name here

You hear that language and look at the adult, giving them that ‘Well? Aren’t you gonna do something?’ look, and they either ignore you, or tell you to mind your own business.

Unless they’re using the words incorrectly or promoting bigotry, why should the adult do anything? Children are supposed to learn how to talk.

So mind your own business, I guess.

Davidsays:

You miss the point.

First off, as former police officer and current attorney Greg Prickett points out in his post at Simple Justice, there’s no way those charges would stick.

Those charges won’t stick, but they’ll still be quite icky as they slither down your face, and you have to pay for your defense while the sheriff does not have to pay a dime for the charge, even if it is completely frivolous. Even if you manage the miraculous feat of getting your costs reimbursed, it’s still not the sheriff who has to pay a dime for harrassing you and stealing your time and money.

An ordinary citizen can convert his money into arbitrary harrassment suits which may or may not incur costs with the target. But a law enforcement officer can convert other people’s money into harrassment suits. There is just no downside for them.

DBsays:

Re: Re: DA and Arrest

At first that seemed off-topic, but it (and the following comments) provided a great deal of additional info.

The sheriff went to Liberty University, the far-right university founded by Jerry Falwell. It’s not known for high academic standards. It is known for its political and religious stance. They make it clear to incoming students that free speech takes a back seat to religious belief.

The truck owner worked for the Sheriff Dept until relatively recently.

The arrest was for an offense in March and April 2014 (when she worked at the Sheriff’s Dept?).

Anonymoussays:

Lets get real

If someone walked around giving your kids the middle finger, you wouldnt consider it free speech, you would see it as disorderly conduct and you would expect the police to prevent it from continuing. Its the subject of the F-U that causes you to pick this side. Thats whats wrong with america. Because it is an action taken against someone you dont like, you consider it acceptable. That sort of stuff has been happening for the last couple centuries here. I would think it very offensive if it was f trump, f hillary, f sanders, f ronald mcdonald.

Anonymoussays:

Re: Re: Lets get real

“walked around giving your kids the middle finger”
– completely different

“Because it is an action taken against someone you dont like, you consider it acceptable. “
– wrong

“That sort of stuff has been happening for the last couple centuries here.”
– same as it ever was

Am I allowed to be offended when some go to great lengths simply to scratch their pet peeves?

AzureSkysays:

Re: Re: Lets get real

not really, i would just tell my kids, “kids, thats whats called an asshole, dont be an asshole” just like the best father i have watched raise kids, a good friend of mine…whos kids are no worse for growing up around “obscene” language, hell, they have watch carlin videos for hollidays since my friend was a kid, his oldist daughers on a full ride to a private school that even covers cloths, on course for a full ride at a major uni, in a STEM field, his only problem child is the youngest and, shes like a mini-me of him…(we all love her, shes a riot, and not a bad kid, just snaky, and sarcastic, and way to bright and inquisitive..also..way to good at spotting bullshit….)

McGyversays:

Let's get realer...

Let’s get real?
Nobody is flipping off little children… And little children didn’t vote for Trump… Or did they?
Whatever, it’s not directed at children…
Plain and simple…
It’s free speech, like it or not… Crude or not…
I think I’d be more inclined to say the message was in bad taste because the language was crude if I hadn’t seen “Fuck Obama” and “Fuck Hillary” well before Trump was installed… And probably not too many folks here are old enough to remember the old “Fuck Iran” bumper stickers back during the days of yore, when “Fuck” actually had a lot more shock appeal…
Do you see “concerned” people raining righteous indignation down on all the other crude auto related bullshit out there?
I’ve see many a set of rubber balls hanging from trailer hitches… I think physical dildo accessories dangling from your pickup are a bit cruder and far less necessary…
Is anyone threatening the bearers of the “1(800) EAT-SHIT” sticker?
Is Hobbs pissing on a Ford logo too crude?
How about “Ass, Grass or Cash” or “Fuckengroovin”…?
It’s harmless good ol’ boy humor when it’s about something you are indifferent about, makes you chuckle or supports your views…
But shocking visual threat to the eyeballs of small children when it’s about something you support.
Fuck democracy, you gotta nip that in the bud before more people start agreeing…
Now, your innocent eyes are finally offended…
Now it’s time to pick and choose what is offensive.
Big fucking deal…
“Fuck what you don’t like” was done long ago, so live with it when it’s finally against something you do like.
Funny how no matter how crude anti Obama rhetoric was, no matter how many rubber nut sacks are dangling from ballsy trucks, no matter how crude the the pun on the sticker is nobody tried to threaten those people with jail…
But say something crude about Trump… Now you gotta start watching your back.
Do I like Trump?
Fuck no.
Is the language crude?
Sure.
Is crude new?
No.
Is it illegal?
Fuck no.
But ultimately it’s shit like this that makes people want to scream “Fuck you and your supporters”…
So to all the hypocrites out there who are shocked by “Fuck Trump”, but never uttered a word when it was “Fuck the other guys”…
Well, Fuck, fuck, fuckity, fuck you and your pets too…

AzureSkysays:

Re: Re: Let's get realer...

well said, i cannot stop laughing at the trump supporters i know on fb and IRL who spent 8 years calling him the n word, a “mooselimb” “terrorist”..etc… who are very very very offended that people arent respecting trump…..the funniest part i have gotten more then one “not racist” to say verious forms of “its not like its that nibber obama” i just rofl… now, i dont have tds, i have loathed/despised the man since the 80’s and 90’s when he was on talk tv alot… just always came off as such a major douchebag egotist…thats never changed….

and i find some of the shit they spew at/about trump…bloody stupid…stick to serious shit, stop using trump to distract us from the shit the govt is doing to fuck us under cover of trump….ugg…

Bruce C.says:

*It is highly doubtful the Sheriff has “received numerous calls” about a window decal. *

Regrettably, if there are enough voters in the county to elect this sheriff and/or voted for Trump, he probably did get several complaints from people. Even without blind partisanship, there are still people who want to suppress all usage of the “seven words you can’t say on television”.

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