Court Denies Motion to Preclude Reference to “President Bush” and/or “Free Speech”

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A civil-rights lawsuit by 78-year-old Harold Lischner against the township of Upper Darby, Pennsylvania, has generated a couple of interesting motions in limine.

It’s also now generated a blog post that may be the first document anywhere to use the adjective "interesting" to describe a motion in limine.  For non-attorney readers, this is a motion to exclude evidence — you know, the blue thing the defense attorneys are always handing somebody on "Law & Order."

For readers under 12, or those not convinced that this is going to be interesting, here’s a clip of Sesame Street’s "Law & Order: Special Letters Unit," in which the squad tries to locate the letter "M," and frequently invokes the "chung chung" sound (that’s what the Muppets call it).

Anyway, Lischner, a doctor and a professor at Temple University, was charged with disorderly conduct in 2003 for protesting a GOP fund-raiser attended by the President in Upper Darby, described by the Philadelphia Inquirer as a "traditionally Republican township."  Lischner, one of about 50 protesters, carried a sign with the punchy but wordy slogan, "Withdraw our troops from Iraq. Give the $87 billion to the Iraqi
governing council and UN for immediate relief and repair of the
destruction we caused."  The sign was described as "torso-sized," which I would think means the words would have been too small to be read by anyone not already in the group of protesters, which would seem to defeat the purpose.  I guess it depends on whose torso we’re talking about.

Whatever the problem really was, police repeatedly told Lischner to put the sign away and leave.  When he didn’t, he was arrested for something called "defiant trespass," but was actually charged with disorderly conduct.  He was acquitted of that charge, and later sued the township, alleging that his civil rights had been violated.  This led to the interesting motions in limine filed by the township’s attorneys to exclude evidence from the trial set to begin on Monday, July 23.

First, they moved to exclude any reference at trial to the message on Lischner’s sign, or the person at whom it was theoretically directed — the President of the United States.  They argued that these facts were irrelevant, or alternatively, and more comically, that any relevance they might have would be outweighed by the danger of unfair prejudice to the defendant township — specifically, that jurors will associate it with President Bush.  Because the President has "the worst approval rating of an American president in a generation," the township’s lawyer wrote (italics his),
"President Bush’s identity, in and of itself, presents the danger that the jury will favor plaintiff . . . ."  Holding that these facts were relevant to the question whether there was probable cause to arrest Lischner, the court denied these motions.

Second, the township moved to exclude any argument by Lischner that his First Amendment rights had been violated, since he was only alleging a claim under the Fourth Amendment for unlawful seizure.  The judge did preclude Lischner from asking for damages for a "violation of the First Amendment," but he rejected the township’s other claim — to preclude any reference at all to "free speech" or the "First Amendment."

The irony of a motion asking that someone be ordered to keep quiet about "free speech" does not seem to have registered with anybody.  The judge did not mention it, either, but did hold that these concepts were still relevant to Lischner’s claim that there was no probable cause to arrest him, and to the damages he may have suffered.  Chung chung.

Barring some kind of settlement over the weekend, the trial will begin Monday morning.  Maybe Upper Darby should seek a continuance, given that success in Iraq is  just around the corner.

Link: Philadelphia Inquirer
Link: Lischner v. Upper Darby Township, No. 05-4546 (Mem. Order of July 11, 2007).
Link: Download the "Law & Order" sound, a.k.a. "chung chung," "doink doink," etc.