On September 3rd, the generally very liberal, 9th U.S. Circuit Court of Appeals declined to hear the appeal of an eight-year-old lawsuit filed by the Top Hatters Motorcycle Club.
All throughout the new millennium, four members of the Top Hatters have argued that their free speech rights were violated when they were ordered to leave the Gilroy Garlic Festival.
The What And Where
Gilroy is a farming city of about 50,000 people in North-central California, about equidistant from San Jose and Monterey. Gilroy’s most famous crop is garlic and this boon with which the Lord has blessed Gilroy is celebrated for three days on the last weekend of each July with plentiful helpings of garlic ice cream, beer and live music of many genres.
Numerous biker events have written policies that hope to prevent confrontations between clubs by forbidding motorcyclists from wearing or displaying their club patches. The Top Hatters wear a patch that portrays a winged skull sporting a top hat, a top rocker that says “Top Hatters” and a bottom rocker that names one of the club’s five chapters. The plaintiffs in this case were from Hollister.
The Top Hatters, founded in 1947 by returning World War II veterans. They proudly participated in the infamous Hollister motorcycle riot. And, some of them showed up at the Garlic Festival, generally wearing colors, every year for the next 53 years until an off-duty police officer employed by the festival told them to take off their cuts or get out on July 30, 2000.
Garlic Festival organizers have argued that the dress code policy under which the Top Hatters were ejected was legal even though it was unwritten and new.
The Court’s six to five decision ignored the First Amendment issues raised by the plaintiffs and left the constitutional argument unresolved. Instead the 9th Circuit disposed of the case on a procedural question. The closely divided Court ruled that the Garlic Festival is a private rather than a municipal endeavor and that private groups may restrict speech and self-expression in public areas even when governments cannot.
The decision marks the third time the plaintiffs have lost the suit. A judge in San Jose dismissed the suit in 2005. And, a three-judge panel of the 9th Circuit ruled last year that the Top Hatter’s colors were not expressions of free speech because the four plaintiffs told the jurists that the patches meant something different to each of them.
The Why Not
Those judges who dissented from the latest ruling agreed the suit should go to trial because the Garlic Festival is in fact, if not by rule, a yearly festival sponsored by the City of Gilroy.
“The festival is not an intimate, private gathering,”‘ Judge Sidney Thomas wrote. “It is the largest event of the year in Gilroy.”
The Garlic Festival’s lawyer, Gregory Simonian, thought the court got it right this time because the Top Hatters scare people when they wear their colors. “The overarching consideration for the festival is public safety,” Simonian said. “That’s always been at the heart of this.”
A representative for the Top Hatters said last year that that was exactly why the club had pursued the suit for so long-because they resented being labeled as a gang.
But Mark Derry, a writer for the Gilroy Dispatch argued the day after the ruling that the piece of embroidery the Top Hatters wear on their backs is toxic and dangerous and that the Top Hatters are fools not to know that.
“Way to go Top Hatters,” Derry wrote. “It’s funny how motorcycle club members assert their fierce ‘independence’ – they all have to dress the same. But it’s ludicrous to think that grown men don’t understand that the Garlic Festival just wants to have a peaceful event and that vests displaying a skull, wings and top hat – no matter how mellow the guys wearing them are acting – could set off an incident. And it only takes one or two incidents to ruin something that this community has spent more than 30 years nurturing and supporting. To claim this is a free speech issue only diminishes other worthy causes. And by the way, if you can’t get a free speech argument past the Ninth Circuit Court in SF, you really ought to pack up your skulls and wings and go home.”