A federal judge in Eastern Washington just issued a fantastic order for motorcycle rights and the Constitution.
But before we talk about why it’s so powerful it’s important to understand the First Amendment. A lot of people think the First Amendment protects whatever they want to say and with whomever they want to assemble. Not the case.
There are legitimate limitations on both speech and assembly. But what really stands out is just how little speech is actually protected in the first place.
Many riders think that wearing their club insignia—irrespective of the message or by whom it’s understood— is protected under the First Amendment. Most are surprised to learn that it isn’t.
For a patch to be protected there has to be a legitimate message and it has to be understood by an intended audience.
For years we labored under some really bad case law. These were cases where club members either could not articulate any message associated with their patches or that at most their patches stood for the shared interest in partying together.
Bad facts make bad law and for years the cloud of these precedents hung over our heads.
It turns out the best place to test these constitutional issues is in litigation involving dress codes at county fairs. (Private entities don’t have to respect your First Amendment rights—public entities do.) One of those events that has a specific anti-motorcycle dress code (disguised as an anti-gang dress code) is the Walla Walla Fair.
In 2019 some imagination and the planets lined up. A number of COC members went to the fair wearing t-shirts that read:
The shirt was designed to do two things: (1) to violate the anti-gang dress code in at least 10 different ways and (2) to make absolutely clear that law enforcement (and anyone able to read the English language) understood what message was being conveyed.
Law enforcement wasn’t sure what to do. Deputies posed for photos with some people who were wearing it. Nobody with it on was asked to leave.
Law enforcement did, however, eject two people who were wearing SYLB and SYLA insignia. Under normal circumstances, this probably would have been defensible. The County would have made the same arguments (that SYLB and SYLA) didn’t have any meaning worthy of protection under the First Amendment and that the intended audience was entirely unclear.
The shirt solved both of those problems. With its narrative in place, the message and intended audience were abundantly clear.
For the first time a federal court has recognized the importance of the message (that can be) conveyed by club insignia. This decision validates motorcyclists’ right to protest (1) unfair treatment by law enforcement and (2) the government’s efforts to stifle First Amendment speech and association.