Metropolitan News-Enterprise


Publication Date:: Monday, June 30, 2008


Page 1


Ninth Circuit Holds Van’s Message of ‘Jihad’ Protected Speech


By SHERRI M. OKAMOTO, Staff Writer


A Grass Valley man’s proclamation via block letters on his 1970 Volkswagen van that he was a terrorist carrying a weapon of mass destruction was political hyperbole protected by the First Amendment, the Ninth U.S. Circuit Court of Appeals ruled Friday.

A three judge panel concluded that police officers violated Matthew Fogel’s constitutional rights by arresting him and impounding the van upon which he had painted the message, as well as other slogans and paintings, but declined to impose liability against the officers, holding that a reasonable officer could have concluded the message was not protected under existing precedent.

Fogel painted block letters on the back of his van indicating he was a suicide bomber, and declaring “jihad” on the First Amendment and invoking Allah to praise the Patriot Act. The rest of the vehicle was decorated with slogans and paintings added by Fogel and his friends that had no political or threatening character.

When a citizen in the town located between Sacramento and Reno complained about the van, a police officer responded, but told his supervisor that the writing was merely satire. The supervisor disagreed, however, and ordered the officer to treat the situation like a bomb threat.


Officers testified that, upon being questioned about the van’s messages, Fogel said he wanted to “scare people into thinking.” The interviewing officer stated in a deposition that he found Fogel mild-mannered, and that he did not take the writing as a threat.

The officers did not follow standard bomb threat procedures at the scene or during a subsequent search of the van, but impounded the vehicle and arrested Fogel, who spent one night in jail before being released when the district attorney declined to press charges. The police department released Fogel’s van once he removed the writing.

Fogel filed a civil rights suit against the individual officers, the police department, and the city in the U.S. District Court for the Eastern District of California, where Judge David F. Levi assumed for the purposes of qualified immunity that the writing was protected speech, and that immunity attached. Granting the defendants’ motion for summary judgment, Levi also found that the city had not acted pursuant to an unconstitutional policy or practice.

But Judge William A. Fletcher wrote for the Ninth Circuit that the message was political rhetoric, subject to First Amendment protection, and not a true threat.

True Threat

Citing the Ninth Circuit’s opinion in Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, (2002) 290 F.3d 1058, Fletcher explained that a “true threat” is “‘an expression an expression of an intention to inflict evil, injury, or damage on another,’” that does not receive First Amendment protection.

But he added that threatening speech that can reasonably be characterized as political rhetoric or hyperbole is protected, particularly when such speech is not directed at specific individuals.

Examining the message on Fogel’s van in context, Fletcher concluded that the statements were not serious expressions of intent to cause harm because the First Amendment and Patriot Act references were “overtly political speech.”

He further noted that “reasonable observers would be hard-pressed to believe that an actual suicide bomber would so boldly announce his presence and intentions.”

Subjective Intent

Fletcher also pointed out that the officers who saw the van and its message did not behave as if they believed the speech was a true threat and there was no evidence that Fogel subjectively intended the speech as a true threat of serious harm, leading Fletcher to conclude that Fogel’s message was “exactly the kind of ‘unpleasantly sharp attack’” on the government that the First Amendment “welcomes and protects.”

Nonetheless, Fletcher concluded that the officers were entitled to qualified immunity because a reasonable officer could have concluded that Fogel’s speech was not protected by the First Amendment under existing precedent.

Reasoning that Fogel did not offer any proof that the city maintained an official policy of suppressing political speech protected by the First Amendment, or that any final policymaking official made a decision to violate his rights, Fletcher also concluded the city was not liable for the officers’ constitutional violation.

Judges Melvin Brunetti and Richard R. Clifton joined Fletcher in his opinion.

The case is Fogel v. Collins, 06-15395.


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