Mistrial declared in First Amendment lawsuit alleging violation of Athens, Tennessee, man's constitutional rights

Contributed photo by Glenn Whiting / This sign Glenn Whiting, of Athens, Tenn., painted on the side of a family-owned building on the courthouse square led to a federal free speech lawsuit that ended in a mistrial on Tuesday. Whiting said on Jan. 20 he looked forward to a new trial in the case.
Contributed photo by Glenn Whiting / This sign Glenn Whiting, of Athens, Tenn., painted on the side of a family-owned building on the courthouse square led to a federal free speech lawsuit that ended in a mistrial on Tuesday. Whiting said on Jan. 20 he looked forward to a new trial in the case.

ATHENS, Tenn. - It's a dispute that rattled the small town of Athens, Tennessee, raising questions of free speech and a man's right to publicly criticize city officials via a message written larger than life along the entire side of a building directly across from the county courthouse on the town square.

And now a lawsuit over the matter has split a federal jury in Chattanooga, too. Jurors deliberated for three days before declaring they couldn't come to a consensus on the matter.

A federal trial in a lawsuit against the city of Athens ended Tuesday in a mistrial when the jury couldn't reach a verdict in the suit alleging First Amendment violations of the Athens man's right to free speech in painting the message, which complained about the city's handling of a vehicle theft.

"Is this the leadership we want?" the message said. "Time for change!!!"

Plaintiff Glenn Whiting, 61, claimed city officials threatened to charge him with extortion and tear down a family building in retaliation for his public and protected statements about city government. They also ordered him to stop work on awning improvements on his building, he said, in retaliation.

U.S. District Judge Travis R. McDonough declared the mistrial Tuesday afternoon.

"I'm not discouraged by it. I'm looking forward to a new trial, and I think a new trial will have a different outcome," Whiting said in an interview at a downtown Athens office Thursday. "We feel we had the jury on our side."

Whiting said the jury is required by law to reach a unanimous decision unless both sides agree to accept a majority verdict. Whiting agreed to a majority decision but the city's attorneys did not, he said.

The defendants' attorneys, Dan Pilkington and Emily Taylor, declined to comment on the mistrial but said their firm's clients look forward to resolving the matter.

"We respect the jury's deliberation in this matter," Pilkington said Wednesday in an email. "We are confident in the legal process, and we look forward to the eventual resolution of this case on the merits."

(READ MORE: Athens police Google Nest cameras went missing, got returned)

The first sign

The enmity between Whiting and officials developed years prior to the action at issue in the current suit.

The suit contends the relationship between Whiting and city officials declined over several years related to a previous suit his daughter filed and won against a defendant "who worked closely with county officials, judges, the district attorney's office and court personnel," and because of Whiting's support of a man convicted and sentenced in 2014 to three years in McMinn County on charges of extortion and perjury related to repeated petitions to the county's grand jury between 2011 and 2014.

Whiting had painted a sign on the Pope Avenue building related to his daughter's suit, which drew fire from officials and even led to a discussion of extortion charges being filed, documents state. The eventual judgment was in her favor, the complaint states. Whiting later painted over his protest statement.

(READ MORE: Athens, Tennessee, city manager suspended for two weeks without pay)

Additionally, Whiting and his family voiced their support for Walter F. Fitzpatrick throughout his case, earning "enemies within the community's political establishment," the complaint states.

A retired Navy commander, Fitzpatrick's judicial saga started in 2010 with his attempt to have President Barack Obama indicted over the conspiracy theory that Obama was not born in the United States and was therefore not qualified to be president. Fitzpatrick was sentenced to three years in prison as Whiting and other Fitzpatrick supporters gathered at the courthouse.

A second sign

Years later, a car belonging to Whiting was stolen from a family member's building on Pope Avenue in a criminal case that Whiting contends city police refused to investigate because of his enmity with local officials, according to the complaint.

As Whiting pressed for an investigation of that case in 2019, he told city officials he planned to paint a sign commenting on the situation and then was embroiled in a back-and-forth over whether he could install the planned sign, according to court documents.

Though Whiting's complaint does not contain the painted message at issue, he provided a photo of what he eventually did paint on the wall to the Times Free Press.

It said: "Witness calls me to tell me about car being stolen out of our building. Called 911 was told wouldn't stop robbery until we prove ownership? Witness confronts thieves they ran for the car and took off. Athens P.D. still refuse to get involved? Car found damaged and radio stolen. APD refusing to talk to witnesses or fingerprint. Met with chief Couch and Seth Sumner who promised to investigate. Well over a year later, key witnesses still not questioned, Mayor Burris refuses to allow me to speak at city council about car. Is this the leadership we want? Time for change!!!"

The building the sign was painted on stands across the street from the McMinn County Courthouse facing Jackson Street, a main northbound thoroughfare in downtown Athens.

Whiting's suit says city officials ordered that another building his family owns be condemned and torn down in retaliation for his sign. The suit says the city's actions were intended to keep him from expressing his complaints and political views.

The suit seeks damages and injunctive relief, but no monetary amount is specified in the court documents. It also asks that the defendant reimburse Whiting for attorney's fees.

Through its attorneys, the city denied it violated Whiting's constitutional rights and as asserted that Whiting doesn't own the property where the sign was painted.

Officials also denied the city painted over Whiting's sign and denied Whiting's allegations that his speaking at city council meetings was chilled by actions by city employees.

The city also denied allegations of special treatment for "special" people, allegations of threatened actions against Whiting if he moved forward with plans to paint his sign, or that anyone threatened Whiting with retaliation if he went forward with the sign.

(READ MORE: Athens, Tennessee, police chief fired amid ongoing city council probe into problems between them)

The city's answer admits the city condemned a building on Pope Avenue owned by Whiting's father-in-law, according to court documents, but denies that actions taken were retaliatory.

Whiting said Thursday when the case is retried he and his attorney plan to take a new approach he believes will be more successful.

Contact Ben Benton at bbenton@timesfreepress.com or 423-757-6569. Follow him on Twitter @BenBenton.

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