State appeals court trashes argument that littering is protected speech

By The Associated Press

01.03.03

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SAN FRANCISCO — Littering as a political statement is not protected by the First Amendment, the state Court of Appeal in San Francisco ruled this week.

The court upheld a jury's decision to toss out a civil rights lawsuit by a parent arrested at a meeting of the Albany Unified School District.

David McMahon, an engineer who lived across the street from Albany High School, had complained to the school board about students who were littering in the neighborhood.

When the board convened its April 1996 meeting, McMahon appeared with plastic bags of trash, which he opened and dumped onto a tarp he had spread on the floor of the room.

Board members called police, who refused to arrest McMahon because officers hadn't seen him do anything. Superintendent Dale Hudson then made a citizen's arrest for disturbing a public meeting, and McMahon was taken away in handcuffs.

McMahon was released and was never prosecuted. He later sued for false arrest, claiming the district and board members violated his right to free speech.

The appeals court said the law against disturbing public meetings has been interpreted to protect free speech. But it doesn't protect those who should know they're disrupting a meeting by violating its rules or customs.

In other words, McMahon's conduct wasn't protected, the court ruled.

Walter Pyle, McMahon's lawyer, said his client probably would appeal.

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