Jury rules for Clarke
Former Sheriff David A. Clarke Jr. did not violate Dan Black’s First Amendment rights, a jury rules.
A federal jury late Monday sided with former Milwaukee County Sheriff David A. Clarke Jr. in a trial over whether Clarke’s Facebook posts violated the free speech rights of a man who had shared a flight with Clarke.
Dan Black, 25, was detained by deputies when the flight landed in Milwaukee last year, because he had shaken his head at Clarke before the plane left Dallas. After Black filed a formal complaint over how he was treated, Clarke put up two posts on the agency’s Facebook page that Black found threatening and intimidating.
Black’s lawsuit claimed the posts dissuaded him from ever again seeking redress of a grievance against a powerful government official.
The jury of two men and five women found Black had failed to prove the posts suppressed his willingness to make such a complaint in the future. They about three hours.
Black’s attorney, Anne T. Sulton, asked jurors to impose punitive damages because Clarke “believes he’s unaccountable, above the law.” Her closing argument was grounded in practiced glorification of the First Amendment, and how it sets the country apart.
Clarke did not appear at the trial. Sheriff ’s Capt. Mark Witek sat at the defense table. The county would have been liable for paying any damages the jury might have awarded Black.
In his closing, defense attorney Charles Bohl argued that Black and Clarke had a simple “internet spat” with no civil rights implications. He said Black himself was the first to mention the airport incident on social media, seemingly mocking Clarke in one tweet, and gave multiple TV news interviews about his encounter with Clarke and Clarke’s reactions.
“Did the posts chill his exercise of his First Amendment rights?” Bohl asked. “It’s a resounding no. He exercised those rights abundantly.”
Sulton said the real question is whether the experience would discourage Black from ever again filing a complaint about a public official. Black said it did. His parents testified they wouldn’t advise him again to speak out, given the impact the yearlong affair has had on the whole family.
Friends testified Black hasn’t been himself; he’s more cautious, on edge and sometimes paranoid about the sheriff’s office. Black testified he hasn’t been able to land a new job, since any internet search of his name turns up almost nothing but the dispute with Clarke.
Going to the news media, Sulton argued, was a sensible protection when it appeared the county itself wasn’t going to do anything about his complaint.
Sniffling back emotion on the witness stand, Black testifed his lawsuit was more of the same, insurance against the power of Clarke and his office.
“I need someone to say this is wrong,” Black told jurors.
“Did the posts chill his exercise of his First Amendment rights? It’s a resounding no.” Charles Bohl, defense attorney arguing for former Milwaukee County Sheriff David A. Clarke Jr.
During jury selection in the morning, Sulton objected that the only African-American in the jury panel was struck by the defense. Bohl said she was struck for non-racial reasons, like that she had once served on a jury that awarded damages and that she had supported President Barack Obama, whom Clarke had opposed.
Black and Clarke were on the same flight from Dallas to Milwaukee on Jan. 15, 2017. Black saw Clarke wearing Dallas Cowboys gear and asked if he was David Clarke. Clarke said he was, and Black shook his head and walked away to his seat in coach.
When the plane landed in Milwaukee, Black, 25, was greeted by six sheriff ’s deputies who had been directed by Clarke to take Black aside and question him, which two of them did. They then escorted him from the airport.
Black later posted on social media about the incident and filed a complaint with the county. Clarke responded with two Facebook posts, on Jan. 18 and Jan. 19. One included Black’s photo, and called him “Snowflake.”
Black said he took the posts as threats. Three friends testified he was
on edge and paranoid after the posts.
In his opening statement, Bohl told the jury that far from chilling Black’s free speech, Clarke’s posts about him only encouraged Black, citing three television interviews he gave about the airport incident and its aftermath. Bohl said Black used his “15 minutes of fame” to defame Clarke.
Bohl characterized the affair as “an unfriendly internet spat” between two men who didn’t like each other and reminded jurors the First Amendment protects even repugnant ideas.
Black said he had never seen Clarke before the airplane incident and hasn’t since. He said what happened “is not a spat,” but a violation of his rights that has come to define him online. He said if he had known all the consequences, he would never have filed the complaint.
“It’s been a massive strain on me, my family and friends,” he testified. “It wasn’t worth it.”
The jury had to decide whether Clarke’s posts about Black on the Sheriff ’s Office official Facebook page in the wake of the airport incident amounted to retaliation against Black for filing a complaint about Clarke with the county. If the answer was yes, the jury was to decide damages.
Black’s lawyer didn’t ask for any specific award or contradict the defense claim that Black didn’t suffer any actual damages, since hasn’t yet paid for any therapy he says he would like to get.
Someone claiming First Amendment retaliation usually must show he was subjected to a campaign of petty harassment, a threat of physical harm or of some kind of punishment, sanction or adverse regulatory action.
“In contrast, an isolated instance of public ridicule will not amount to actionable retaliatory harassment unless it is egregious enough to deter a person of ordinary firmness from exercising his right of free speech,” Stadtmueller wrote in a Jan. 5 order narrowing the issues for trial.
Clarke served as Milwaukee County sheriff from 2002 until August when he abruptly resigned to go to work for the pro-Trump super PAC America First Action as a spokesman and senior adviser. He has also created a new company called DAC Enterprises, based in Maryland.
Over the years, the ex-sheriff has used social media to try to provoke others. For instance, during the 2016 presidential campaign, he tweeted that it was time for Americans to pick up “pitchforks and torches” in response to what he called a “rigged” electoral system.