This county ain’t big enough for the both of us

It’s been a rough couple of months for Sheriff Victor Hill. He’s the (lame duck) Sheriff of Clayton County, Georgia. 

In August, a federal judge declined to grant qualified immunity to Mr. Hill in a suit brought by a strip club against the Clayton County Sheriff’s Office. In that complaint, the club (Pink Pony South) alleges that one day after it opened, the Sheriff began operating roadblocks “on a nearly nightly basis” on the main access road into the club. These roadblocks, the club claims, were set up “for the express purpose of interfering with the business and the exercise of First Amendment rights inherent” to the business. When motorists were stopped at the roadblocks, the deputies allegedly threatened potential patrons and told “patrons falsehoods regarding conditions in [Pink Pony South]‘s business.”

In denying the Sheriff’s request to dismiss the suit, the district court held:

[A]s alleged, the roadblocks constituted a prior restraint on protected expression, which are strongly presumed to be unconstitutional. A prior restraint on expression exists when the government can deny access to a forum for expression before the expression occurs. The Eleventh Circuit has characterized similar prior restraints as unconstitutional conditions requiring citizens to surrender their Fourth Amendment rights . . . in order to exercise their First Amendment Rights. Here, [Pink Pony South] has alleged that the Defendant restricted access to its venue and searched and seized incoming patrons by operating roadblocks…. The Defendant was on notice of constitutional problems stemming from prior restraints of expression. (all quotation marks and citations omitted).

You could say that Sheriff Hill is learning the First and Fourth Amendments to the United States Constitution the hard way. Last week, in another case, a federal jury had to decide whether the Sheriff should be held liable for violating the First and Fourth Amendment rights of Mark Tuggle. Who’s Mark Tuggle? He’s the brother of Stanley Tuggle, the incumbent sheriff that Mr. Hill defeated in the 2004 election. The suit is straightforward: Shortly after the election (on January 4, 2005), Mark Tuggle telephoned Sheriff Hill’s office to offer a few, choice words — to an answering machine, it turns out. He was upset by the Sheriff’s decision to fire 27 officials one day earlier (January 3). Mr. Tuggle was promptly arrested by the Sheriff’s Office for (allegedly) violating a Georgia statute prohibiting harrassing phone calls. (The charges were later dismissed.)

I attended most of Mr. Tuggle’s trial. Both sides were well represented. Mr. Tuggle was represented by Bill Atkins, whom I consider a good friend. Bill tried a super, First Amendment retaliation case; the verdict came as no surprise to me.

Mr. Hill might find it worthwhile to read David Hudson et al.’s excellent new reference: Encyclopedia of the First Amendment. This recently-released treatise is billed as “the first work of its kind,” a “two-volume reference comprehensively examines all the freedoms in the First Amendment, including free speech, press, assembly, petition, and religion.”  The Encyclopedia “covers the political, historical, and cultural significance of the First Amendment. It provides exclusive, singular focus on what most people consider the essential elements of the Bill of Rights and the basic liberties that Americans enjoy.”

I am both honored and humbled to have contributed a few essays to the Encyclopedia. My topic: prior restraints.

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