Free Speech vs. Turd Terrorism: When Is Poop Not Constitutionally Protected?

While the Supreme Court has spent this term worrying about silly things like abortion, the death penalty, and workplace discrimination, this country just saw one of the most important poop-related court decisions since 2002, when a deputy sheriff was charged with felony vandalism after leaving fake poop in a judge's chambers. Because last week the Weld County District Court in Greeley, Colorado ruled that poop is protected by the First Amendment.

Here are the facts of the case. On May 31, 2006, Kathleen Ensz of Greeley decided that she was sick and tired of receiving campaign literature from U.S. Representative Marilyn Musgrave. So she took a three-inch-long lawn ornament from her German Shepherd, stuck it inside one of Musgrave's pamphlets, and dropped the pamphlet outside of the Greeley building in which Musgrave's office was located.

Overreaction being the better part of valor, Musgrave's people called the cops. And in accordance with the post-9/11 Pansying of America, the cops immediately assumed it was Bowel Qaeda, labeling the turd-o-gram "suspicious" and possibly even "explosive." Tens of thousands of taxpayer dollars were immediately committed to the investigation, which began and ended with reading the address label still pasted to the campaign brochure.

But taxpayer expenditure didn't stop there. The DA decided to charge Ensz with "depositing a noxious substance with the intention of interfering with the use and enjoyment of a building," ensuring the full resources of the state of Colorado would be employed on this quest for justice. After all, this wasn't just a bag of doodie thrown on some nerd's porch in a teenage prank -- this was a direct attack on a member of Congress.

Nor was Ensz just some teenage prankster. She's vice chairman of the Colorado Senate District 13 Democratic Central Committee. And, as the Denver Post points out, both Musgrave and Ken Buck, the district attorney who brought the charge, are Republicans.

In his closing statement at the trial, Chief Deputy District Attorney Christian Schulte said jurors should convict Ensz of "criminal use of a noxious substance" because she "intended to deprive Musgrave or other people of the use and enjoyment of their property". Ensz's defense argued that this case was an attempt to chill free speech, and that it was only being brought for political reasons.

"It was, very simply, my personal protest of Marilyn Musgrave's representation," said Ensz. "It was a political statement."

Jurors agreed with the defense. Ensz was acquitted, and the precedent was set: poop enjoys the protection of free speech.

This is a very thorny issue for PoopReport. On the one hand, we are a site that clearly relies on free speech protections for its survival. A less permissive society would block us in a heartbeat. (Did you know that we're banned in Saudi Arabia?) So we're against any implication that poop is not subject to the same protections as, say, puppy dogs or flowers.

But at the same time, our platform against turd terrorism is unequivocal: we are staunchly opposed to it. From an upper-decker to an all-out bathroom bombing, there is absolutely no justification for intentionally using poop to render a restroom or any other room unfit for human use. Poop should flow from your butt to your toilet. That is our party line. Even something as minor as placing a turd in campaign literature: we cannot condone it.

But what if Ensz had been found guilty? What if it was suddenly *illegal* to leave poop anywhere but in a toilet? What would that mean for the poor, incontinent poopers whose stories of woe populate the archives of this site? With very few exceptions (and I include in that list C. Everett Poop, since anyone who so loudly and so often insists on a lifetime of continence must surely have nothing to hide), it seems like nearly all of us have had an unfortunate McAccident. Imagine how much worse things would be if, in addition to the social stigma that accompanies Underwear McSlurry, one also faced legal repercussions if it dripped onto the floor?

So while I cannot condone Ensz's use of poop, I applaud the court's decision not to punish it. Because otherwise the experience of facing a ticking chyme bomb would be fraught with even more horror. (And, possibly, our nations roads would be even more dangerous.) I'm proud that America retains the freedom to eat at Taco Bell without worrying about legal consequences.

What is required, then, is some sort of legal framework distinguishing poop-as-speech from poop-as-terror. Because poop cannot be wholly subject to the protections of free speech, lest the turd terrorists in the world think themselves free to commit their unspeakable acts. And don't be complacent about this: there are evildoers in this world. There are men and women who find joy in brown spackle, and fruition in your horrified response to it. Deviant miscreants with excrement: they're out there, and the rule of law and order is necessary to protect us from them.

Thus, in respect to the wisdom of the Weld County court, I propose this benchmark to differentiate between free speech and fecal jihad: ease of cleaning.

If one can simply remove the offending matter with no more protection than a rubber glove, then it's free speech. This standard protects Ensz's method of political discourse: by ensconcing poop in a campaign brochure, her point was made but a skidmark was not. Her message was communicated, and then easily removed.

But as soon as cleaning is required, then the perpetrator has gone too far. If your act necessitates a scrubbing with bleach, then you have violated another human being's inalienable right not to have to clean up poop that doesn't belong to them. If the recipient of the message has to break out a squeegee or a paint scraper, then the line demarking turd terrorism has been crossed.

In the wake of Ensz vs. Weld County, I believe the courts need to clarify this point. It's free speech if it sends a message. It's turd terrorism if it requires a mop. This distinction will help us resolve the next iteration of Brown vs. the Board of Education -- that is, the next time some jerk tosses a bucketful of humanure in the direction of a PTA meeting.