Kingman case about more than First Amendment
A candidate running for the Mohave County Board of Supervisors will appeal a trespassing conviction for wearing a T-shirt with an expletive. He was arrested last summer after refusing to cover up or remove the T-shirt during a supervisor’s meeting. As KJZZ’s Paul Atkinson reports, the county may have violated his First Amendment rights, and in the process, generated the publicity he sought.
Mervin Fried is an anti-tax, small government, second amendment advocate who makes it a habit to know the law better than most. He was arrested for trespassing in February 2010 for trying to bring a pitchfork into the Mohave County Administration building. A judge threw out the charge.
“It was ruled that the county manager acted arbitrarily, capriciously, and unreasonably towards me when he allowed people into the building with loaded firearms and he arrested me for carrying a pitchfork,” says Fried. “Because he deemed that my pitchfork was more dangerous than someone carrying a firearm.”
It wasn’t a farm tool, but a foul word that got Fried in trouble a second time. He came to a county supervisors meeting last summer wearing a white T-shirt with “F the tax” in big red letters on the front, only the F-word was spelled out. Fried was asked to cover it up or remove it. He refused and was arrested again for trespassing.
“And it’s kind of unreasonable I think that I can walk down the street with that T-shirt on or I can drive a car with a bumper sticker that has that on it,” notes Fried. “I can’t go and address my government with that on it? I find that unreasonable.”
Assistant Mohave county attorney Bill Ekstrom begs to differ.
“It’s a public meeting. There’s a lot of people there who I’m sure are very offended by that,” says Ekstrom. “It’s also televised. And there’s a concern about the FCC and that kind of language over the networks and stuff. But, basically, it’s bad form and inappropriate behavior and he was asked to leave.”
Ekstrom says Fried violated the Board of Supervisors Rules of Order, which are basically dress code rules taken from Superior Court. They forbid the wearing of hats, short skirts, and clothing with wording that is otherwise inappropriate or offensive.
“One certainly understands the county motive,” says David Bodney, a First Amendment attorney with the Phoenix law firm Steptoe and Johnson.
“I’m not aware of any incitement, fighting words or any imminent risk to members of the public,” says Bodney. "And therefore I think the county has pushed the issue constitutionally speaking further than is permissible.”
Bodney says the case parallels a 1971 Supreme Court decision that overturned the conviction of a Vietnam war protestor who wore a jacket that said ‘F- the Draft” in a public building. In fact, on the back of Fried’s T-shirt that said “F- the tax,” was a reference to that First Amendment case. But Bodney says Fried is also protected by Arizona’s constitution.
“And our state Supreme Court has said that our counterpart to the First Amendment will be more speech protective than the federal constitution,” observes Bodney.
Prior to last month’s verdict, Fried quit his job as a delivery company supervisor anticipating a possible jail sentence. But a Justice of the Peace only fined him $300. Assistant Mohave County attorney Bill Ekstrom says prior to Fried’s sentencing, the county received an offer to settle for $450,000.
“You know, this was orchestrated. Certainly his right to do that. I don’t have a great deal of sympathy for him,” says Ekstrom. “I don’t think he was doing anything more than trying to draw attention to himself and to maybe set the county up for a lawsuit.”
No lawsuit has been filed yet, but Fried’s attorney plans to appeal his conviction. In the meantime, Fried is hoping the case pays dividends in another way -- publicity. He’s one of three dozen candidates running for the Mohave County Board of Supervisors.