By Julia Cheever
June 28, 2008
A federal appeals court in San Francisco has ruled that Grass Valley police violated the free speech rights of a Nevada County man when they forced him to paint over a satirical terrorist bomber slogan on his art-covered Volkswagen van.
The 9th U.S. Circuit Court of Appeals said the slogan written by Matthew Fogel in 2004 was “an obviously satiric or hyperbolic political message” and not a true threat.
The court issued the ruling Friday in a civil rights lawsuit filed by Fogel.
Fogel, a Nevada City resident, was 22 when police impounded his van in the parking lot of an apartment complex in Grass Valley after receiving a call from a concerned citizen.
According to the court ruling, the rear window of the van was painted with a message in block letters saying “I AM A FUCKING SUICIDE BOMBER COMMUNIST TERRORIST.”
The van had several other political messages including “ALLAH PRAISE THE PATRIOT ACT” and was also decorated with an American flag and numerous nonpolitical slogans and paintings, the court said.
Police officers found no bomb or illegal materials in the van, but arrested Fogel, jailed him overnight and required him to cover the messages with white paint to get the van back. He was charged with making a threat, but county prosecutors declined to press the charge.
Fogel was later described by one of the officers as having been “mild-mannered.” Fogel said in a lawsuit deposition that his goal was to express disagreement with the federal Patriot Act and that “it seemed pretty plain to me that it was a joke.”
The appeals court noted that the U.S. Supreme Court has said free speech can be censored only when it represents a true intent to harm another person and not when it is political commentary or hyperbole.
Judge William Fletcher, writing for a three-judge appeals panel, said the message was not a true threat when seen in the total context of the decorated van.
Fletcher wrote, “A reasonable person would expect that an observer of Fogel’s van would see an old Volkswagen van covered with artwork, an American flag, and an obviously satiric or hyperbolic political message.”
Fletcher said, “Reasonable observers would be hard-pressed to believe that an actual suicide bomber would so boldly announce his presence and intentions.”
But the court said that while police violated Fogel’s rights, he couldn’t sue them for financial compensation, because the law on whether such messages were a threat was unclear at the time.
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