Jury split on first amendment trial
By Chris Johnson
Warning: This article contains expletives that may be offensive to young or sensitive readers.
Allegations of illegal actions taken by municipal officials -- a debate over what kind of speech is protected under the first amendment of the United States Constitution -- and discussion of what kind of language specifically tends to incite a breach of the peace for the purposes of a disorderly conduct charge, all marked the trial of Antonio Francis Buehler in the Gonzales County Court on Thursday, June 25.
Presiding over the court was County Judge David Bird. County Attorney Paul Watkins prosecuted the case against Buehler. Buehler was represented by Millie L. Thompson,of Austin and Chevo Pastrano Jr., of Houston.
The facts of the case were never in dispute by either the prosecution or the defense. What was disputed were whether the words, “Go fuck yourself,” spoken to Gonzales Police Captain Gayle Autry -- by Buehler -- in a setting in which no one but Autry was offended by the words, constituted protected speech under the First Amendment of the United States Constitution.
The two parties also disagreed about whether these words by their very utterance tended to incite an immediate breach of the peace for the purpose of a disorderly conduct charge, a Class C misdemeanor.
After hearing approximately five hours of testimony from witnesses and arguments from attorneys, a jury comprised of three men and three women failed to either convict or acquit the defendant.
The events that led up to Buehler’s arrest occurred on March 13, 2013, at the Gonzales Municipal Court, while Judge Deidra D. Voigt was presiding. Buehler, along with several other companions were present at the court to watch court proceedings for Nathan “Nate” Thomas of Gonzales.
According to the testimonies of multiple witnesses, as they were waiting for Thomas’ case to be called, Voigt was adjudicating a number of truancy cases.
Witness Justin Frost, a chicken farmer from Austin, testified that kids were in the courtroom, “for stuff that had happened in school,” and that they were being sent through “a prison pipeline.”
“There were a lot of children being called up. I saw these children come up before the judge, and she berated them. She mocked them, and I was appalled, and I was on one side, and Antonio and these other people were on the other side. I thought, ‘How can this lady talk to these children like this?’” Donna Voetee, a mother of four and the grandmother of three, from Lockhart, said.
Multiple witnesses testified that Buehler then pulled out his smart phone and began recording the court proceedings and that Voigt confiscated his phone and searched its contents for more than an hour without a warrant.
Buehler testified on his own behalf about the incident, stating that he received no notice that filming municipal court proceedings in a public courtroom in a public building was prohibited before pulling out his phone. He also said he started filming the proceedings because he observed Voigt berating the juveniles and because he wanted to collect evidence of her behavior.
According to multiple witnesses, Voigt ordered all members of the audience, including Buehler out of the courtroom. The members of the audience left the courtroom and waited in the hallway and lobby. The county’s only witness, Gonzales Police Captain Gayle Autry, testified that after being dispatched to City Hall, he found several individuals verbally bombarding a younger, junior officer.
Autry then testified that he relieved the junior officer. Buehler testified that he and several other individuals asked Autry to assist him in getting his phone back and to open an investigation into the theft of his phone by Voigt. Autry also testified that Buehler had asked him to arrest Voigt.
According to multiple witnesses, Autry asked Buehler’s companions to leave City Hall, which they did. Buehler remained indoors, waiting to recover his phone. His companions testified to waiting outdoors on the grassy area between the sidewalk that runs parallel to N. Saint Joseph Street and the parking lot for approximately half an hour.
Buehler testified that Voigt called him into her chambers to talk with him. According to him, she told him that if he did not delete the photo and the video that he had taken in her courtroom, that she would charge him with contempt of court and have him arrested. According to Buehler, she also said she would charge him with contempt of court and issue a warrant for his arrest if he recovered the files and posted them on the internet.
Buehler said that he deleted the files in front of the judge and that as Autry was escorting him out of City Hall, that Autry said, “Don’t ever come back to my courtroom again.”
At this point, a video posted to YouTube by Mike Hanson, of Gonzales, was shown to the jury, by the prosecution, depicting Autry escorting Buehler out to the same grassy area where Buehler’s companions were standing, while Buehler records Autry on his phone. Autry issues a no trespass warning to Buehler and his companions, and touches Buehler on the arm. Buehler pulls his arm away from Autry, and asks, “Why are you touching me?”
As Autry walks across the parking lot back toward city hall, and Buehler walks toward the street, Frost says to Autry, “Have a nice day,” in a tone that Frost testified he intended to be sarcastic. Autry replies, “Hey, you too, Bud,” to which Buehler states, “Go fuck yourself,” twice, towards Autry.
Autry then promptly turns around, says, “That will get you, buddy,” walks to Buehler and arrests him. When asked by a couple of Buehler’s companions for what he is arresting Buehler, Autry answers, “for disorderly conduct.”
At this point Frost speaks the words, “Free speech,” a few times. Another voice chimes in, “That’s free speech.” A couple more voices add, “Free speech violation.”
Autry then escorts Buehler to an unmarked, white pickup truck and drives away.
“As he (Autry) led Antonio over to his truck in handcuffs, I called him a coward,” testified Stacie Frost, the wife of Justin Frost. Stacie also testified that Antonio was the only person out of their party that Autry escorted over to the sidewalk.
The debate over whether the words, “Go fuck yourself,” consisted of free speech occurred between Buehler’s attorneys and Judge Bird. Following Autry’s testimony, the defense submitted a motion for Bird to dismiss the charges based on an opinion issued by the Texas Attorney General’s Office in 1988.
This opinion reads, “Conviction under a statute specifying a ‘breach of the peace’ as an element of the offense must be based on jury instructions including an admonition that proof of ‘actual or threatened violence is essential,’” citing the case Woods v. State.
During the trial, County Attorney Watkins was not trying to prove the events that led to Buehler’s arrest. Rather he and the defense disagreed on whether the words spoken by Buehler, by their very utterance, tended to incite an immediate breach of the peace.
Bird refused to dismiss the charges against Buehler, and he declined to allow the defense to provide the jury instructions that a charge of disorderly conduct requires proof that disorderly conduct had actually occurred, or that a threat of violence had occurred. Rather, Bird appeared to rely on the fact that the charge provided to the jury quoted the legislation in Section 42.01(a)(1) of the Texas Penal Code.
Even though at the moment the words were spoken, both parties were walking away from each other with approximately 30 feet between them, Autry testified “I believe he (Buehler) was trying to provoke me.”
“I thought he was trying to start a fight,” he added.
However, Autry also testified that he did not feel the need to hit Buehler and that he did not ask anyone else at the scene if they felt the need to hit him.
In the aforementioned video, some of Buehler’s companions are heard in the background calling Autry a “thug,” a “criminal,” a “loser,” and a “criminal thug,” as Autry drives away. Autry testified that he did not hear these comments at the time, but that if he had, “he probably would have arrested” some of Buehler’s friends.
All witnesses at the trial, excluding Autry, asserted that they were not offended by Buehler’s words and that they did not believe that his words could have led to one or more acts of physical violence. Buehler also testified that he in no way intended to incite an act of violence, but rather his words came as a result of what he described as a frustrating series of experiences.
Other witnesses at the trial not previously mentioned included Gary Johnson, an investor and radio talk show host from Austin, Katie Brewer, a stay-at-home mother who lives in Kyle and Chuck Thomas, a former reporting analyst for Dell, from Austin.
Brewer testified that when she heard Buehler’s words to Autry that, “it was more like he (Buehler) was telling him (Autry) to go fly a kite.”
Watkins supported Autry’s position in his closing arguments saying, “When somebody says, ‘Go F yourself,’ they intend to fight,” yet the defense consistently held the position that not only did Buehler’s words not provoke any act of violence, there was little to no possibility of an act of violence being committed in response to his words.
In the end, Jury Foreman Christine Moers reported, “We are in a deadlock, with no chance to resolve.” Judge Bird declared a mistrial, and all parties were dismissed from the courtroom.
Buehler is a former U.S. Army Airborne Ranger and combat engineer, a graduate of the United States Military Academy at West Point, a graduate of the Stanford Graduate School of Business, and the Harvard Graduate School of Education. He currently works for Abrome, a coaching firm that helps young people identify and engage in learning experiences that allow them to lead remarkable lives, which, in conjunction with a college consulting service, attempts to ensure their entry into the world’s elite universities.
He operates his own homeschooling consulting firm, Buehler Education, which seeks to enable parents to help your children through the homeschooling experience. Finally Buehler is the founder of Peaceful Streets Project, an all-volunteer, grassroots effort uniting people to end the institutional violence taking place on the streets. Through community organizing and direct action tactics, the Peaceful Streets Project seeks to support communities in understanding, exercising, and standing up for civil rights.
Captain Gayle Autry is a police officer with 23 to 24 years of experience. More than 20 of those years have been spent with the Gonzales Police Department. Autry currently works in narcotics investigations and as lieutenant in the GPD patrol division. Autry has led in several significantly prominent narcotics investigations in Gonzales and is a well-know officer in the community.