Integrity of Justice

Fighting for Truth, Justice and the American Way

Akins First Amendment case expedite request

  1. INTRODUCTION: Pursuant to 28 U.S.C § 1657 Plaintiff/Appellant Matthew Stephen Akins hereby requests that the Court expedite the hearing date on his appeal.

Good cause exists for expediting the hearing on this appeal, because Matthew Akins First Amendment rights have been violated by an on-going censorship violation by the removal of his reports, for Citizens for Justice, from a public forum on the Columbia Police Department Facebook page.  In addition, the District Court’s holding that “Neither the public nor the media has a First Amendment right to videotape, photograph, or make audio recordings of government proceedings that are by law open to the public” (App. P.  1099) impedes the free exercise of First Amendment within this Circuit during the period it is an extant holding limiting the recording of the police in public places.

The Free flow of information about the criminal justice system ultimately “guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. See U.S. Supreme Court in Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 560 (1976). While limits on recording police (including time, place and manner restrictions) may be justified in certain circumstances, defendants did not offer any justification here for retaliating against the plaintiff for recording them. As was the case in Akins, the police have offered no justification for this uniformed with a badge, police department employee ordering an end to Akins filming. Except as it relates to Chief Burton’s designation that CPD Lobby, designated point for the petitioning of the government for a redress of grievances, (ie., misconduct complaints against police officers) was according to the police non-public forum despite its usage.  The Columbia Police ordered Akins to stop filming Mr. Jordan file his misconduct complaint by a dept. employee executing the Chief’s order supervising City property. (App. Video Supp #34 Not Allowed to film in public lobby).

Hooper v Pasco, 241 F.3d 1067 (9th Cir. 2001) held, A. First Amendment Violation. Categories of Fora -The Supreme Court instructs us that, in assessing a First Amendment claim for speech on government property, “we must identify the nature of the forum, because the extent to which the Government may limit access depends on whether the forum is public or nonpublic.” Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 797 (1985). If the forum is public, “speakers can be excluded . . . only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.” Id. at 800. If, on the other hand, the forum is non-public, the government is free to restrict access “as long as the restrictions are `reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker’s view.‘ ” Id. (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)).

Thus, the two main categories of fora are public (where strict scrutiny applies) and non-public (where a more lenient “reasonableness” standard governs). This does not, however, exhaust the universe of categories. Rather, “Forum analysis divides government property into three categories: public fora, designated public fora, and nonpublic fora.”5 DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 964 (9th Cir. 1999), cert. denied, 120 S.Ct. 1674 (2000) A designated public forum exists where “the government intentionally opens up a nontraditional forum for public discourse.” Id. “Restrictions on expressive activity in designated public fora are subject to the same limitations that govern a traditional public forum,” i.e., strict scrutiny. Id. at 964-965

As the Supreme Court observed in Cornelius, government intent is the essential question in determining whether a designated public forum has been established:  The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional public forum for public discourse. Accordingly, the Court has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum. The Court has also examined the nature of the property and its compatibility with expressive activity to discern the government’s intent. 473 U.S. at 802 (emphasis added) (citing Perry , 460 U.S. At 46). The “policy” and “practice” inquiries are intimately linked in the sense that an abstract policy statement purporting to restrict access to a forum is not enough. What matters is what the government actually does -specifically, whether it consistently enforces the restrictions on use of the forum that it adopted.

FACTUAL BACKGROUND

In the Akins matter, the Columbia Police Public Lobby was the point designated for citizens to petition the government for a redress of grievances. A fundamental right specifically protected by the First Amendment text. As the point designated by the City of Columbia for filing police misconduct complaints this was a traditional public forum. In addition, this lobby was where citizens also filed reports of crimes, contained media advisories, public information displays and the memorial to the fallen officer Molly Bowden within this lobby open 24 hours a day to the public. Despite Chief Burton’s erroneous designation that this lobby was a non-public forum. Precedent clearly established that its usage rendered it a traditional public forum for the exercise of First Amendment rights.

In addition, the social media platform Facebook, a modern-day version of the Speaker’s Circle, was designed to be a marketplace of ideas and information. The “marketplace of ideas” is the cornerstone of First Amendment doctrine. The marketplace model focuses on the role of speech in truth-seeking: Speech is the means by which people convey information and ideas, by which they communicate viewpoints and propositions and hypotheses, which can then be tested against the speech of others. Through the process of open discussion, we find out what we ourselves think and are then able to compare that with what others think on the same issues. The end result of this process, we hope, is that we will arrive at as close an approximation of the truth as we can. In the Akins matter, the Columbia Police Department Facebook page social media platform fits squarely within the confines of what is a traditional public forum where commerce in the marketplace of ideas is exchanged. Even if it wasn’t a traditional public forum by design. The option to “post by others” that the City enabled on the Columbia Police Department (CPD) Facebook page. An option that was utilized by Akins when he posted his six reports, compiled on behalf of Citizens For Justice, on the CPD Facebook page established that this was at least a designated public forum, if not a traditional public forum as a modern-day speaker’s circle. The City’s decision to remove Akins’ posts in the summer of 2011, and thereafter censor any non-government approved information from being posted violated the First Amendment.  And turned this marketplace of ideas into an indoctrination center where only government ideas were communicated to the people and no longer a marketplace of ideas with them.

PROCEDURAL BACKGROUND

Akins’ lawsuit under the First, Second, Fourth and Fourteenth Amendments to the U.S. Constitution was filed in the U.S. District Court for the W. D. of Missouri on 05/08/15. Motions to disqualify Judge Laughrey were denied on 07/09/15 and 01/11/16. On 08/18/15 Motion to Dismiss Boone Cty. granted. On 08/02/2016, the Court granted City Defendants judgment and denied judgment to Akins. Appeal was timely filed on 08/29/16. Akins’ Brief and Appendix were filed on November 15, 2016. The Response brief for the County Appellees was filed on February 20, 2017, and by the City Appellees on February 27, 2017. Akins’ Reply brief was filed on March 27, 2017.

LEGAL ARGUMENT

Good cause exists for an expedited hearing due the egregious and on-going violations of the First Amendment under the district court’s holding. In Lambert v. Polk Cnty., 723 F. Supp. 128 (S.D. Iowa 1989) a court of this circuit found that the seizure and refusal to return a video tape violated plaintiff’s First Amendment rights and issued an injunction against same. In Lambert, the court said, “There is clearly a threat of irreparable harm to Lambert if he does not promptly get his videotape back. Lambert has a right to use the tape under the First Amendment to the United States Constitution. Heller v. State of New York, 413 U.S. 483, 93 S.Ct. 2789(1973); Art Theatre. v. Parrish, 503 F.2d 133 (6th Cir.1974). The First Amendment is applicable to the states through the Fourteenth Amendment, Joseph Burstyn. v. Wilson, 343 U.S. 495, 500-02(1952). Supreme Court stated: “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.Elrod v. Burns, 427 U.S. 347, 373 (1976).” Id., at 134-5 (emphasis added)

First Amendment protects pure communication whether it is active or passive and encompasses “the right to receive information and ideas.” Kleindienst v. Mandel, 408 U.S. 753, 762-763 (1972) “It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail . . .. It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged” Id., at 763.

Good cause exists for an expedited hearing. Due to the vital nature of the First Amendment, to redress censorship and the right to gather information on government agents in public, are essential to the integrity of our federal system.  “Appeals entitled to priority on the basis of good cause under 28 U.S.C. § 1657.” 28 U.S.C. § 1657 provides each court with the authority to determine the order in which civil actions are heard and determined and permits expediting the consideration of any action if good cause is shown. “good cause” is shown “if a right under the Constitution of the United States or a Federal Statute . . . would be maintained in a factual context that indicates that a request for expedited consideration has merit.” 28 U.S.C. § 1657.

RECORD ON APPEAL

 

The Appellant’s Appendix was filed with the Court on the 15th day of November 2016 and City Appellee’s filed a supplementary appendix on February 27, 2017.

POSITION OF OPPOSING COUNSEL:

 

Counsel for the City Appellees, Brad Letterman, does not agree that there is a need for an expedited hearing, but has no objection to this matter being set on the Court’s June 05-09, 2017, St. Louis docket. Counsel for the County Appellees, Josh Devine, has no objection to this matter being set on the Court’s June 06-09, 2017, St. Louis docket. Noting a conflict on his June 05, 2017, calendar. Appellees counsel are not opposed to a hearing before this Court in St. Louis in June 2017.

CONCLUSION

The First Amendment is the core bargain engaged in between the citizenry and the government and is vital to the health of our Republic. Governmental usurpation of our First Amendment rights are irreparable harms, even if, for minimal periods of time. The ongoing nature of the censorship of Akins’ reports and the improper restriction of the gathering of public information on police in public within this Circuit require an expedited review and answer.

Respectfully submitted,

 

                   /s/ Stephen Wyse____

              Stephen Wyse, MO Bar # 49717

Attorney for Appellant Akins

609 E. Broadway

Columbia, MO 65201

(573) 449-7755, Fax (573) 449-7557,

Email: swyse@wyselaw.com

 

CERTIFICATE OF SERVICE

The above and foregoing was filed with the Court by ECF transmission and served upon counsel for all parties on this 29th Day of March 2017.

/s/ Stephen Wyse                      

Stephen Wyse, MO Bar # 49717

 

RULE 27 CERTIFICATE OF COMPLIANCE

As required by F.R.A.P. Rule 27 the undersigned certifies that: 1. This motion contains no more than 5,200 words presumed limit; 2.There are 1,875 words in this motion (including headings and quotations, but not including the cover, table of contents, table of citations, statement with respect to oral argument and the certificates of counsel regarding service, filing and compliance with F.R.A.P. 27 as determined by the word count function of Word 10; and 3. This document is virus free.

 

/s/ Stephen Wyse   

Stephen Wyse, MO Bar # 49717

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