A bouquet of dead flowers left on the desk of a government official may send an eerie message to the recipient, but it's not enough to make an arrest for menacing under New York law. Instead, the Southern District of New York holds, that arrest is illegal under the First Amendment because the dead flowers and an accompanying hostile written message represent free speech.
The case is Holley v. County of Orange, 06 Civ. 3984, decided on January 14. (The case is not yet reported). The plaintiff is a 69 year-old mother who was upset when the local court revoked her son's probation and the probation officer laughed while leaving the courtroom. So mom walked into the probation office undetected and left dead flowers on the receptionist's desk with a message for the probation department reading, "Thinking of you, your 'HELP' will be long remembered." This "eerie" and "creepy" gesture freaked out probation officer Corchran, who was afraid the leave the building alone. Plaintiff's follow-up email to a probation supervisor stated that she was sick and tired of the way that office had humiliated her family. She also said the bouquet was "serving notice" and that the "gift spoke for itself."
Holley was arrested for menacing, which makes it illegal to intentionally place another person in imminent fear of physical injury or death. Here's the problem: cases hold that laws like this require the imminent fear of injury or death, not a speculative fear. For this reason, cases cited in this opinion make it clear that the menacing law in New York is a tough law to prosecute. Since there was no probable cause that the flowers placed the "victims" in imminent fear of injury or death, her arrest violated the Fourth Amendment. The district court further held that, while Holley's gesture was "crude" and "offensive," her arrest also violated the First Amendment because it was not a "true threat" of violence, particularly since she left the office after dropping off the flowers. Instead, the court held, the bouquet and card "were neither unequivocal nor unconditional insofar as plaintiff expressed her dismay with the Department of Probation and asked for an apology." Since her rights were violated, plaintiff is entitled to damages as determined by a jury.
This case will remind government officials that irate citizens have the right to express profound dissatisfaction with official decision-making and that much of this rancor should be taken with a grain of salt. The case will remind lawyers that some criminal prosecutions are really First Amendment violations in disguise. For me, the case brings to mind a Rolling Stones classic from 1971 that I have not heard in years.