For the second time this year, Sexton has sued the city and its police department for violating his constitutional rights. The first complaint, filed in January, was prompted by an incident in which he flipped off an officer. The second, put forward last week, involves Sexton's arrest over his use of the word "fuck" in phrases such as "Fuck the police."
The latter exchange was captured in a video (below). At one point, an officer says, "I'm more than happy to have you stand there and yell. However, yelling the word 'fuck' like that is coarse or offensive language."
In response, Sexton asks: "Do you want to lose in court? Do you really want to take that to court and lose in court? ... That will not stand up in federal court. The Supreme Court will slap that in your face. Thank you!"
The city's response to the new lawsuit, delivered via email, reads: "The Colorado Springs Police Department appreciates Westword reaching out to our organization to discuss this incident, but we are unable to speak on any matter that is under litigation."
Attorney Andrew McNulty of Denver-based Killmer, Lane & Newman, LLP, who represents Sexton in both cases against Colorado Springs, describes the arrest as "an obvious free-speech violation. And it is not the first time Colorado Springs officials have arrested and maliciously prosecuted Mr. Sexton, and others, for simply criticizing them."
Sexton's YouTube channel is called Pikes Peak Auditors, and it's dominated by videos in which he records police interactions in ways that can be provocative. But as indicated by his remarks, he has a keen understanding of free-speech law, which the most recent lawsuit underscores by way of an introductory passage that references 1971's Cohen v. California, in which the U.S. Supreme Court ruled that Paul Robert Cohen wasn't guilty of disturbing the peace simply for arriving at a courthouse wearing a jacket emblazoned with the phrase "Fuck the Draft."
One passage reads: "Plaintiff Michael Sexton was subjected to a humiliating arrest for simply saying the four-letter word that the Supreme Court of the United Stated held, over fifty years ago in Cohen, is protected by the First Amendment: fuck."
Also shared in the document is this excerpt from the Cohen v. California majority decision: "[T]he State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. ... For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual."
Here's the video that's key to the second lawsuit. The main action begins at the 18:40 mark and escalates over the next five to ten minutes.
McNulty is a veteran of unusual First Amendment challenges. He was among the attorneys who defended Free the Nipple Fort Collins in a landmark case that toppled a city ordinance that made female toplessness a crime, and last year, he took on a charge stemming from a topless Frisbee game that eventually cost Loveland $50,000.
More recently, McNulty and fellow lawyer Mari Newman sued the City of Aurora over an attack on a violin vigil in honor of the late Elijah McClain that made international headlines after police broke up the crowd using chemical agents.
Of the latest Sexton case, McNulty contends that "there is little separating authoritarian regimes and Colorado Springs when it comes to censoring individuals for criticizing the government. The First Amendment is under attack in Colorado Springs, and citizens, like Mr. Sexton, who are willing to stand up for their rights are the only bulwark against Colorado Springs' repeated tyranny."
Click to read Michael Sexton v. the City of Colorado Springs complaint from July and a similarly titled document filed in January.