Update: This story published on Thursday pointed out that Karen Fonseca had been arrested Thursday on an outstanding warrant for a fraud charge. More details emerged on Friday, showing she was indicted in July of this year on a charge of identity theft in 2014.
It’s the classic American conundrum: Our First Amendment entitles us to speak our minds, even if others may not agree or appreciate the way we say it. Even if one of those is the sheriff. Or does he have a point?
Karen Fonseca of Houston has a Texas-sized decal in the window of her truck that vividly, if obscenely, expresses her views of President Trump and his supporters. She says she’s received both complaints and praise for it. She also said she’s been stopped a few times by police officers, but they’ve never been able to figure out what to cite her for.
But the whole thing went viral on Wednesday, when Fort Bend County Sheriff Troy Nehls posted a photo of the truck on Facebook with a request to speak to the driver. “I have received numerous calls regarding the offensive display on this truck as it is often seen along FM 359. If you know who owns this truck or it is yours, I would like to discuss it with you,” the post read. “Our Prosecutor has informed us she would accept Disorderly Conduct charges regarding it, but I feel we could come to an agreement regarding a modification to it.”
Not clear what the modification would be. Strike the F-word, clearly, but replace it with what? “Fooey on Trump?” “Fork Trump?”
Anyway, Nehls deleted the post after thousands of commenters defending the decal as free speech — though thousands also “liked” the post. A spokesman for Nehls’ office said some commenters had said derogatory things about Nehls’ family.
Nehls later said he supports the First Amendment but simply wanted to talk to the owner.
“The objective of the post was to find the owner/driver of the truck and have a conversation with them in order to prevent a potential altercation between the truck driver and those offended by the message. Since the owner of the truck has been identified, the Sheriff took down the post,” the sheriff’s spokesman for Nehls’ office said.
But Fonseca said she’s been driving with the sticker for almost a year with no concerns for her safety. “I drive it all the time on a daily basis,” Fonseca said. “I’m not fearful. There’s too much positive, and it makes people smile. They honk their horn, they give you a thumbs up.”
A mother herself, Fonseca said she understands why parents might not want their kids to see the foul language, but she points out they see the F-word constantly used elsewhere, such as online. “This is nothing,” she said. “Unless you’re going to put your kids in a bubble, you can’t blame it on your children.”
Ah, but the plot thickened Thursday, or at least it gained a sideshow, when KHOU-TV reported that Fonseca’s husband Mike said she’d been arrested on an outstanding warrant for what court papers said was a fraud charge in Rosenberg, which is in Fort Bend County.
So what’s the legality of all this?
Nehls, in the comments on his post, shared what he said was the legal definition of disorderly conduct in Texas. He said the charge is appropriate for a person who intentionally “uses abusive indecent, profane, or vulgar language in a public place” or “makes an offensive gesture or display in a public place” that “tends to incite an immediate breach of the peace.”
But the American Civil Liberties Union of Texas said Fonseca’s message is protected speech and urged her to reach out to the organization. It pointed to a 1971 U.S. Supreme Court case that overturned the conviction of a man for wearing a jacket with the same expletive protesting the military draft and Vietnam War.
Not all speech is protected, of course. Not yelling “Fire!” in a crowded theater is a commonly cited example. But based on that 1971 case, Cohen v. California, the incitement Nehls refers to has to be highly specific “fighting words.”
Nehls maintained in a press conference, shown in the video clip above, that that’s exactly the case here, because the message is an “F— you” to specific people who voted for Trump.
Lynne Rambo, a law professor at Texas A&M University who specializes in the First Amendment, said Thursday that the 1971 Supreme Court case means the state can’t restrict speech over profanity, and that this speech is too broad. The sheriff, she said, “really ought to know First Amendment law better than that.”
Some have accused Nehls of launching a politically motivated attack — or least a publicity stunt. A Republican, he’s considering a run for Congress in 2018.