A test of free speech | TheUnion.com

A test of free speech

Making people think about American politics is what Matt Fogel wanted when he painted bold terms and the ultimate curse word on his Volkswagen van in protest of the Patriot Act and Iraq war in May 2004.

What he didn’t expect was to get arrested, his van seized and an order from Grass Valley police to paint over the words before he got his VW back.

Four years later the free thinker is now 26, living in San Francisco and glad the incident turned into a precedent-setting First Amendment lawsuit in which a federal appeals court in Sacramento recently found his right to free speech violated.

“It encourages police officers to think more deeply about what they are doing and, hopefully, it will prevent unnecessary suits against police in the future,” Fogel said.

“The judge found it was clear cut, it was political satire,” and not a threat to national or local security.

“My client lost the battle but won the war,” said Fogel’s attorney, Stephen Munkelt of Nevada County.

“The court dismissed his actions against the officers but found it was protected political speech,” Munkelt said. “It wasn’t established before that this hyperbole was protected speech. It’s a binding precedent for the Ninth Circuit.”

The young political activist is not happy the court gave him no damages and ruled the officers immune from his lawsuit, because they were simply performing their duties.

The ruling meant that Fogel could not get reimbursement for the $1,099 in bail he posted to get out of jail and a vehicle impoundment fee of $115, nor an apology from the Grass Valley police.

“The officers acted reasonably,” said attorney Gayle Tonon of Truckee, who defended the city in the case. “They had a person call in about it who was upset, so they had to act. They had to protect.”

The city’s lawyer agreed with the court and Munkelt that Fogel’s statements were political hyperbole and not threats, which is where the precedent line was drawn.

“The First Amendment is not absolute. You still can’t yell fire in a theater, but the Ninth Circuit (federal court) said political satire is OK,” Tonon said.

Grass Valley police Capt. Dave Remillard and Sgt. Jason Perry referred The Union to Tonon, stating they could not comment on the issue. Police Chief John Foster was not available for comment.

Fogel filed the suit against the department and policemen Wesley Collins, Sgt. Michael Hooker, Capt. Jarod Johnson, Gary McClaughry, Greg McKenzie and Perry, who was an officer then.

Court documents show the woman called police when she saw the van in a Grass Valley parking lot with the words, “I am a (expletive) suicide bomber communist terrorist,” scrawled in big block letters on the back of it.

Also written on the VW were the phrases, “Pull me over: please, I dare ya,” and “Allah praise the Patriot Act…(expletive) Jihad on the First Amendment! P.S. W.O.M.D. (weapons of mass destruction) on board!”

The rest of the van had various slogans and paintings on it that were not political or threatening according to documents from the appeals court.

Court records show the officers arrived and Johnson told Hooker to handle the incident as a threat because of the high terror alert the United State was under at the time. Officers then confiscated his VW van and made him paint over the words before it could be released.

The courts said Fogel’s statements were not a direct threat to an individual, which might have put it into a different realm.

“Reasonable observers would be hard-pressed to believe that an actual suicide bomber would so boldly announce his presence and intentions,” said federal appeals Judge William Fletcher in his opinion of the case. “It is hard to see how any reasonable observer would have believed the statements were serious expressions of an intent to cause harm.”

That’s what Fogel thought all along.

“I was just generally disgusted and discontented with the way the government was handling all sorts of things,” Fogel said. “I was trying to get across a funny, ironic joke about the way the war was being run, and I was trying to get people to think.

“If people aren’t thinking about what the government is doing and just go about their daily lives, that opens up the door to their rights to be slowly eroded,” Fogel said. “It takes a blatant, covert action to counteract that.”

Though she didn’t raise Fogel to be a political spear point, his mother, Mary Zezulak, of Nevada City, is proud of what he has done.

“It’s been a long haul,” Zezulak said. “He’s passionate about what he’s involved in, he’s very knowledgeable about the world.

“He was very concerned about where the country was headed.”

To contact Senior Staff Writer Dave Moller, e-mail dmoller@theunion.com or call 477-4237.

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