James Mabe, proprietor of a gift shop on Seawall Boulevard in Galveston, Tex., has been applying Harry Truman's advice to politicians: "If you can't stand the heat, get out of the kitchen." In the process, Mabe has expanded the scope of the First Amendment, but the battle is not over.
This case -- unprecedented in First Amendment annals -- began when Mabe failed to persuade city officials to have mercy on tourists by providing restrooms on Seawall Boulevard. Undaunted, Mabe printed and distributed 2,000 pamphlets, which read: "The Business Operators on Seawall Boulevard Apologize for No Public Restroom Facilities on Our Beachfront. The Persons to Contact Are . . ." There followed the names and home phone numbers of two city council members, four members ofthe city's Park Board of Trustees, and Mayor Jan Coggeshall. (Those home numbers were in the phone book, and some of them also appeared on public documents published by the park board.)
The public officials listed in the pamphlet soon began receiving calls at home, some of them around 3 in the morning. The messages -- unfriendly, with occasional pungent variations -- concerned the lack of restroom facilities. The City of Galveston and the park board thereupon filed a lawsuit against Mabe. They said that Mabe, having harassed, intimidated and invaded the privacy of certain public officials, should be punished. One hundred thousand dollars in actual damages and $100,000 in punitive damages should do just fine.
In July 1984, Judge Don Morgan, a state district court judge considered to be strongly attached to the First Amendment, issued a temporary injunction against Mabe. The gift-shop owner was forbidden to continue distributing the names and phone numbers. At the same time, the judge cited Mabe for contempt of court, fining him $500 and sentencing him to seven days in the county jail. The contempt penalties resulted, said the judge, from Mabe's having disobeyed a previous temporary restraining order to stop his shenanigans. (Mabe had dialed a call to the mayor for a New York woman who was indignant over the lack of restroom facilities.)
Mabe, having been led away to the slammer by three deputies, was soon released on a $50,000 bond, vowing to continue his free-speech fight as far as it would take him.
The next stop was a three-judge panel of the Texas Court of Appeals, First Supreme Judicial District. In January, those jurists reversed Judge Morgan, dissolving the injunction against Mabe. Privacy is a mighty important thing, said the court, but a prior restraint on speech is exceedingly hard to justify under the Constitution, especially when the speech is "critical of the conduct of public business or bears on some matter of public concern. In such an instance, the interest in privacy is outweighed by the larger, fundamental interest in free discussion. . . . "
Mabe's pamphlets "had a direct relationship to the public interest." As for the annoyances, including interruption of sleep, there is always, said the court, the option of getting an unlisted number.
A question not before the court was whether the First Amendment protects an irate citizen who has searched out a public official's unlisted number and uses it in the small hours of the morning. Mabe's lawyer, Anthony Grifld still have a First Amendment right, under those conditions, to exercise the ingenuity to track down his public servant and petition him by unlisted telephone. And that leads to a third option for the public official -- an answering machine that might also be programmed to yell back at the petitioner.
The plaintiffs have been denied a rehearing of the Court of Appeals decision, and the lawyer for the park board tells me he is now going to the highest court in the state, the Texas Supreme Court. (The attorney for the City of Galveston is less enthusiastic about continuing the climb.)
Cheering Mabe on all the way has been Inbetween, a fortnightly "alternative" magazine in Galveston. After the lower court was reversed, the publication said of the litigious politicians: "They should realize that dialogue with constituents doesn't end with their election. In fact it just begins. We encourage our readers to call and register protest with our public officials anytime they like."
Meanwhile, Mabe, merrily proclaiming that his belief in the court system has been restored, plans to use that system to sue the City of Galveston and its mayor for the $14,000 in legal fees it has cost him to send his pamphlets into the world again. Mabe also points out that with all the money the city has spent trying to punish him, it could have put up the restrooms on Seawall Boulevard.