News & Politics

Guess Which Expletive-Laced Tirade Was Just Protected as Free Speech

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Some heroes never get the recognition they deserve. But after a ruling in the Southern District of New York, we have an opportunity to recognize one of the quiet defenders of our freedoms. Willian Barboza is that hero, for it was he who secured — once and for all — the right of every New Yorker to scrawl “FUCK YOUR SHITTY TOWN BITCHES” on a speeding ticket and get away with it.

The ruling, handed down on September 10 and announced on Tuesday, means Barboza has the right to sue a small village upstate for his arrest in 2013. Not only was Barboza’s comment protected speech, the judge said, but the prosecutor in the case might be personally liable for false arrest, and the town — with the too-good-to-be-true name of Liberty, New York — may be on the hook for damages.

The case is a delight, and not just for the sheer novelty of a court transcript that includes the phrase “punk ass motherfucker.” Its deeper pleasures lie in the fact that the judge slaps down pretty much everything about Barboza’s arrest and the D.A.’s response to it, and, in doing so, gives us a little window into how things work in Liberty.

The New York Civil Liberties Union helped litigate the matter along with Barboza’s lawyer and lead counsel Stephen Bergstein. A staff attorney for the NYCLU, Mariko Hirose, calls the ruling a victory for free speech. “New Yorkers should not be afraid to protest or complain about a speeding ticket, or any other government action, [just] because they might be dragged to jail for using a few harmless words,” Hirose asserts in a written statement. (She didn’t call Barboza a free-speech hero, but we can.)

The saga begins in May 2012, when Barboza, who was 22 years old at the time, was pulled over and cited for speeding as he drove through Liberty. A resident of Connecticut, Barboza opted not to fight the ticket, electing instead to pay the fine by mail.

Following Liberty’s procedures, he wrote to the town clerk and entered a guilty plea. The clerk’s office then sent him a letter accepting his plea and providing a form for payment. Barboza supplied a credit card number and, to express his displeasure with the fine, the aforementioned imprecation. He also crossed out the name of the town on the form, replacing “Liberty” with “tyranny.” (A nice touch.)

The note didn’t go over well in Liberty, and not just because it contained a crass message. The city would later argue that the clerk’s office staff — which at the time consisted of all female workers — said they felt Barboza’s gendered insult was a direct threat. The argument was rejected by the court.

In what appears to have been a ploy to lure Barboza back to Liberty, the city did not accept his payment. When he appeared in court to pay his fine in person in October 2012, Robert Zangla, an assistant district attorney for Sullivan County (which includes Liberty), directed a police officer to arrest him.

And so a foul-mouthed free-speech martyr was born. “It felt surreal,” Barboza tells the Voice in an emailed statement passed through the NYCLU. “I couldn’t believe that the people I trusted to uphold the law and know the First Amendment treated me like a criminal for writing a few harmless words.”

A local court dismissed the charge without even bothering to reference case law. According to court filings in the federal case, the judge ruled that “no citation is necessary for this court to determine that the language under the circumstances here, offensive as it is, is protected.”

Barboza sued the arresting officer, Steven D’Agata; A.D.A. Zangla; and the town.

The statute used to lock Barboza up, New York Penal Law 240.30, is the “aggravated harassment” statute, which makes it a crime to communicate with another person in writing “in a manner likely to cause annoyance or alarm” and with the intent to “harass, annoy, threaten, or alarm.”

That’s pretty vague, of course, and would seem to restrict a lot of speech protected by the First Amendment. In fact, because its language is so broad, courts both in New York and at the federal level have steadily narrowed the statute over the past decade. (It was declared outright unconstitutional in 2014, but that ruling happened after all this drama.)

The problems with the law, the most recent federal ruling shows, have certainly not stopped the town of Liberty from applying it with gusto. As it turns out, arresting people on the basis of speech seems to be something of a habit in the town, about 100 miles northwest of Manhattan. According to a transcript of the case, U.S. District Judge Cathy Seibel opined that such arrests “are common in the village and village officers frequently face situations where they are making an arrest because of the use of vulgar words in what may be perceived as a threatening context.” At least 63 arrests were made in Liberty under similar circumstances between 2003 and 2012, Seibel noted.

The judge described other instances in which Zangla had charged someone under the statute, acknowledging that some might represent actual threatening language but that others could have been unconstitutional applications of the law.

When all was said and done, Seibel issued a summary judgment in favor of Barboza, ruling that his arrest was improper and clearing the way for his lawsuit. 

But the matter doesn’t end there. In fact, it gets significantly worse for Assistant District Attorney Zangla, and for the town of Liberty.

It would be one thing if Barboza’s arrest had transpired during a traffic stop, or in some other context in which police officers were acting completely on their own initiative. Officers are generally given a bit more leeway than D.A.s when it comes to knowing the finer points of the law; it’s not their responsibility to pore over legal journals, and if they make a constitutional boo-boo in good faith, they might be forgiven.

But because Zangla had personally ordered Barboza’s arrest and had significant time to ponder the legality of that arrest while waiting for Barboza to show up for his court date — and because he’s a lawyer, not a cop — he should have known that he couldn’t charge Barboza sheerly on the basis of a few naughty words. While the statute hadn’t been completely invalidated at the time of Barboza’s arrest, the judge pointed out, plenty of case law demonstrated that it couldn’t be applied in cases like his. Zangla ought to have known.

That finding has serious implications for Zangla and his boss, Sullivan County District Attorney James Farrell, with whom he conferred about the charge. That’s because while prosecutors are immune from most civil suits like this, just about the only time they don’t enjoy that immunity is when they act in ways that they know are unconstitutional. And based on the D.A.’s response to the suit, the judge said, the pair very well may have.

“It almost sounds like D’Agata [the sheriff] and Farrell knew the arrest was unconstitutional,” the judge stated, “but were willing to go forward and wait and see if plaintiff would realize it….I hope not.”

Zangla, therefore, does not enjoy absolute immunity in the suit, the judge ruled. His motion to dismiss the case was denied and Barboza’s case against him, personally, can now proceed. (Zangla did not return a call from the Voice for comment.) In yet another victory for Barboza, the judge also ruled that the town itself might be liable because it may have failed to train officers adequately on First Amendment law. The officer won’t be liable, however, owing to the leeway to which cops are entitled.

The judge didn’t rule on the merits of any of Barboza’s challenges, determining merely that he has a right to bring the suit. She referred the matter to another judge in the “hope” that the litigants can work out a settlement.

Hirose, the lawyer for the NYCLU, expressed hope that the town will be held liable and that the case will result in better training for everyone involved, including police officers. “We’re talking about clearly established law here,” she tells the Voice. “A village should have a way to train their officers and educate their officers on case law that comes out of their jurisdictions.”

As a side note, Zangla was promoted while the case wended its way through the legal system, and is now chief assistant D.A. in Sullivan County. So he’s got that going for him.

You can read the full transcript of the most recent hearing below. (Note that the plaintiff’s first name is misspelled in the transcript, as is the surname of Chief Assistant District Attorney Zangla.) 

Summary Judgment Decision Barboza

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