Brookside PD ran afoul of good policing practices and possibly the First Amendment – AL.com

This is an opinion column

Brookside the tiny hamlet outside of Birmingham now infamous for its interstate patrols, aggressive policing and possibly phantom traffic citations might have more to worry about than just Lt. Gov. Will Ainsworths call for an official audit or national news outlets focusing their attention on the town of fewer than 1,300 people.

And thats because the town, by way of its police force and now former Police Chief Mike Jones, may have violated the First Amendment rights of those who complained about arrests, tickets and other traffic stops.

As John Archibald reported Thursday, the Brookside Police Department apparently has a consistent practice of patrolling not just the highways of Alabama but also the byways of social media and retaliating against the departments critics. Two things really stuck out to me as a First Amendment scholar in that most recent piece: one woman, Michelle Jones, who cited a mysterious phone call from a Brookside detective claiming she issued threats, incited a riot and slandered the Brookside Police Department on Facebook and a Brookside man who said, after a similar post, an officer told him the chief was pretty upset and any more backlash like that towards his police department and itll be far worse than a ticket.

Those words should give us all pause and cause for concern at the prospect of the police powers of the state being wielded to silence speech. For while the text of the First Amendment reads, Congress shall make no lawabridging the freedom of speech, we have thankfully interpreted that to mean all agents of government acting under the color of law from the president, to the governor, to public school employees and, yes, even police officers must respect free speech rights.

However, lest anyone start shouting about fires and crowded theaters, there are certainly limits to what the First Amendment protects, and those limits include threats and incitement. It is doubtful, though, that Jones Facebook posts rose to the level of what is constitutionally actionable. Inciting a riot via Facebook sounds like a nigh impossibility, and thats not even considering the limitations under Brandenburg v. Ohio that the state can only punish speech designed to produce imminent lawless action. An online threat is more likely actionable generically, but Jones unless she posted something that a reasonable person would view as a serious expression of an intention to commit violence against the Brookside Police Department was again likely engaging in protected speech.

And if the departments staff truly feels slandered (quick point of order: they would have be libeled on Facebook, the difference there being spoken versus something published), the answer there is for a specific individual to sue Jones for defamation not to harass her via telephone.

But its that second anonymous complaint that gets at the real heart of this banal evil. There is no right in this country for a police chief to not be upset about comments made publicly or to somehow escape a dreaded and terrible backlash. If the First Amendment is to mean anything if were going to have the freedom of speech in this country and in this state it has to mean that police departments cannot threaten critics of their official conduct.

That last point was made clear some 60 years ago in a landmark case from right here in Alabama. In New York Times v. Sullivan, Montgomery Public Safety Commissioner L.B. Sullivan attempted to recover damages from paper after it printed a defamatory ad written by a Martin Luther King Jr. fundraising committee. While Sullivan won in Alabama courts, his judgment was overturned by the Supreme Court as it established the actual malice rule, a standard that works to protect the right to criticize public officials and public figures so long as speakers dont act with a reckless disregard for the truth.

Did Jones actually threaten, incite or defame? Did the Brookwood man bring down some nefarious shroud of untruth upon his hometown police department? Most likely not. What we appear to have is a pattern and a practice of the government silencing speech that it does not like.

And whether thats the federal government, the state government or the people running Americas most notorious (for now) speed trap, thats something we simply cannot have in our country.

Will Nevin, J.D., Ph.D., is an assistant professor and program coordinator for Communications Media at Alabama A&M University.

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Brookside PD ran afoul of good policing practices and possibly the First Amendment - AL.com