Ed. Note: This is a guest post by Fort Worth, Texas, criminal defense lawyer Greg Prickett.
Every time I think I’ve seen the dumbest thing a cop can do, all I have to do is wait and they will prove me wrong. Sheriff Troy Nehls is apparently upset at the political speech of one of the citizens of his good county, and he intends to put a stop to it.
On Wednesday, he posted the message below on Facebook, and it immediately went viral. In addition to the “offensive” words that are blacked out, there is also a drawing of a middle finger in the center of the F**K.
Sheriff Nehls is an elected Republican in Fort Bend County, Texas, which is just to the southwest of Houston, Texas. The county overwhelmingly voted for the Clinton-Kaine ticket over the Trump-Pence ticket in the presidential election, but the county is generally Republican. So there’s a disconnect between the county citizens and the elected officials, at least as far as national politics are concerned.
Sheriff Nehls is apparently offended by the window sticker, but he also hasn’t tried very hard to find the truck. It took a local news station less than 24 hours to find the owner, Karen Fonseca. Fonseca told ABC-13 in Houston that she put up the sticker about 11 months ago to voice her family’s disapproval of President Trump.
Sheriff, that’s political speech, and it’s protected speech. You don’t get to silence it because you don’t like it, or even because it offends you, the District Attorney, or anyone else. The Disorderly Conduct statute in Texas is very clear on this.
You can charge someone with Disorderly Conduct if “the language by its very utterance tends to incite an immediate breach of the peace,” or if the “display tends to incite an immediate breach of the peace…” That hasn’t happened here. If Fonseca and her family have been driving around for almost a year and there have been no fights, no disturbances, no riots or so forth, you are not going to be able to prove that there was a danger of an “immediate breach of the peace.”
What you may have, instead, is another crime, a much more serious crime, being threatened by Sheriff Nehls. If Nehls goes through with his threat, it could very well meet the elements of the offense of Official Oppression, which states:
(a) A public servant acting under color of his office or employment commits an offense if he:
(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;
(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful…
So if Nehls is trying to shut Fonseca up, Nehls should be subject to prosecution for violating Fonseca’s rights. He won’t be, but he should. In any event, Nehls immediately drew backlash from his comments on Facebook, so he did what all cops do—he held a press conference and doubled down on his bet.
Nehls stated that the language was “fighting words.” No, really, he said that, even though there hasn’t been a problem in the year the truck has been on the roads of Fort Bend County. Nehls did give lip service to the 1971 Supreme Court decision that stated that a jacket in a courtroom that bore the message “F**k the Draft” did not disturb the peace or lead to violence, but still wants to get the message changed.
Thankfully, the ACLU immediately jumped on this (along with over 5,000 comments on the Facebook post).
And the ACLU is right. You can’t prosecute speech because it contains offensive language. But they are missing the bigger point: you cannot shut down political speech because it is directed at your political party and is offensive. You cannot use the power of an elected law enforcement office to stifle speech you don’t like. You don’t get to wrap yourself in a flag and pretend that you’re protecting the community, or ludicrously, that you’re trying to protect Fonseca from an injury that she hasn’t suffered in almost a year.
Nehls, who is eyeing a run for a seat in Congress in 2018, may just be looking for ways to get his name in the news, to build up a potential campaign. Or, he could just be an idiot who doesn’t understand the Constitution he swore to protect. In either case, his actions indicate problems with his leadership.
 Greg is a former police officer and supervisor who went to law school, hung out a shingle, and now practices criminal defense and family law in Fort Worth, Texas.
 One County Commissioner and one Justice of the Peace are Democrats. Everyone else is a Republican.
 Texas Penal Code, § 42.01.
 Texas Penal Code, § 39.03.