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Legal Issues in the Killian Nine Case
Although the First Amendment pamphlet might easily be, and has been, described as "crude, vulgar, immature, stupid," the legal issue is whether these adjectives prevented it from being circulated in a high school and if so, what sanctions were appropriate against the students.
The complaint filed by the ACLU on February 19, 1999, on behalf of Liliana Cuesta charged that the students' arrests were unconstitutional. In its complaint, the ACLU charged that the arrest of Liliana Cuesta by MiamiDade School Board and school security officer Michael Alexander violated Cuesta's First Amendment (free speech), Fourth Amendment (freedom from unreasonable searches and seizures) and Fourteenth Amendment (due process) rights under the U.S. Constitution. In addition, the suit charged MiamiDade County with violating Cuesta's Fourth Amendment rights when the Department of Corrections' stripsearch policy allowed her to be subjected to a humiliating full strip and body cavity search.
The lawsuit seeks unspecified damages and court costs from each of the three defendants. School officials, responding to the suit, said they aren't liable because they checked with State Attorney Rundle's office about the legal grounds before arresting the students. In response, Don Ungurait, spokesman for the state attorney's office, said school officials are responsible for the arrests. He conceded an assistant state attorney advised school officials that there was probable cause for an arrest, but said school authorities had to make their own judgment call on how to proceed.
"Writing that 'tends to expose any individual or religious group to hatred, contempt, ridicule or obloquy' is essential to the political satire and other forms of criticisms and lies at the core of what is protected by the First Amendment," the suit says. "A statute purporting to criminalize such writing is facially invalid for overbreadth."
First Amendment case law appears to support some aspects of the lawsuit. In a 1995 decision in McIntyre v. Ohio Elections Commission, the U.S. Supreme Court held that anonymity of the author is not ordinarily sufficient reason to exclude his or her work product from First Amendment protection. The interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Justice Stevens wrote: "Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.... Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation ? and their ideas from suppression ? at the hand of an intolerant society.... Our society accords greater weight to the value of free speech than to the dangers of its misuse."
Laws criminalizing abusive or contemptuous speech were also stricken in the 1972 and 1987 Supreme Court decisions in Lewis v. City of New Orleans and Houston v. Hill. Fla. Stat. 836.11, the Florida misdemeanor hatecrime law under which the students were charged, was enacted in 1945 prior to those decisions. Not a single reported conviction had been made pursuant to this statute in its 43 year existence. The lawsuit contends that a reasonable law enforcement officer would have concluded that the statute was unconstitutional.
