An Appropriate Limit on the First Amendment Right To Be A Total Jerk

"Pardon? I'm not sure I understood that last remark."

If you peruse the various debates on Ethics Alarms, you will note that every time someone writes or says something cruel, dishonest or uncivil that appropriately brings down criticism or worse on the miscreant’s noggin, he and his defenders  will argue that the First Amendment should render them immune from the consequences of their words. This is not what the First Amendment is about, however. It is about the government not being able to punish them for what they say, with some exceptions. Even then, it is possible to be so inarticulate in your jerkish expression that your utterances are beyond even that constitutional protection.

For example, when you bark like a dog.

Or to be more accurate, when you set out to tease and annoy a police dog by barking. Mason, Ohio has an  ordinance making it a crime to “willfully and maliciously taunt, torment, [or] tease … any dog used by the Police Department in the performance of the functions or duties of such Department.” That’s exactly what Mason Police Officer Brad Walker found a drunken Ryan Stephens doing to Timber, a K-9 German Shepard behind a screen in his police cruiser. Stephens was up against the window, growling and barking, driving the dog nuts; Walker reported that the cruiser was shaking, so violently was Timber trying to get at the barking idiot outside the car.

When Walker asked Stephens what he was doing, he replied, “The dog started it.” Funny. Walker arrested him, and charged him with teasing a police animal. Naturally, being an idiot, Stephens claimed that he was engaging in protected speech.

The Ohio trial court said no. There was no apparent content to Walker’s barking (is simulated dog speech protected human speech?) , and even if there were (but there wasn’t), the legitimate government interest in not having law enforcement dogs aggravated and upset while on duty by people who think it’s funny to torment animals was sufficient to take barking out of First Amendment protection territory.

Over at the Volokh Conspiracy, where I learned about this story, a remarkable number of commenter find the Ohio decision disturbing and wrong. Even allowing for some of the tongue in cheek remarks, the sheer volume of those willing to argue that this is “one more” whittling away of our rights and that just because speech is unintelligible doesn’t mean that it isn’t speech tells us two things:

1. A law degree can vaporize common sense, and

2. Some people will argue about anything.

Barking at a dog to aggravate him is conduct, just like making high-pitched noises to hurt the dog’s ears, or waving an object in the dog’s face. Unless one is willing to take the absurd position that barking is communication in dog language, even though the “speaker’ doesn’t know what he is saying, calling this protected speech benefits a drunken jerk while putting police at risk, making police dogs targets, and doing nothing to bolster free expression at all.

Using one’s mouth to torture animals is not protected by the Constitution. Only a jerk would do it, and only a jerk would argue that it was.


4 thoughts on “An Appropriate Limit on the First Amendment Right To Be A Total Jerk

  1. Is he trying to construe it as some sort of avant garde performance art? “By barking I demonstrate how we’re all slaves to the system. The system OWNS us. We’re the system’s bitches.”

    Pft. Tormenting an animal isn’t protected just because the means of torment come out of your mouth.

    • Well, I just lost a million dollar bet with myself—I was wagering that you would bring Le Petomane into the conversation! By the way, there is a recording of him “performing” in 1904. BOY, they must have been bored back then.

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