Mayer Brown LLP

71 South Wacker Drive

Chicago IL 60606
United States of America

T: +1 312 782 0600

F: +1 312 701 7711
www.mayerbrown.com
August 28, 2020
Geoffrey M. Pipoly
By Email and Overnight Mail T: +1 312 701 7902
F: +1 312 706 8108
gpipoly@mayerbrown.com
Honorable Michael O’Pake
District Attorney, Schuylkill County
401 North 2nd Street
Schuylkill County Courthouse
Pottsville, PA 17901-1756

Re: Commonwealth v. Stilp, No. MJ-21307-CR-0000367-2020.

Dear Mr. O’Pake:

Along with Aaron Martin of Mette, Evans & Woodside, I represent Mr. Eugene Stilp. My
firm, Mayer Brown LLP, has agreed to represent Mr. Stilp with Mr. Martin in this matter because
of the serious First Amendment issues raised by your office’s decision to pursue criminal charges
against Mr. Stilp for a peaceful political protest and a bail condition that amounts to an
unconstitutional prior restraint on further protected speech. Although our strong desire is to work
with you to reach a resolution, if Mr. Stilp’s constitutional rights are not protected by your office
dismissing the criminal charges—or, at a minimum, amending his bail condition to clearly reflect
that he may engage in protected First Amendment activity pending trial—we will file a federal
civil rights lawsuit seeking immediate injunctive relief.

A. Mr. Stilp’s Long, Well-Publicized, and Effective Career as a Political Activist

Even before your office charged him with a crime on August 13, it is very likely that that
you and your office were familiar with Mr. Stilp. He has long and storied history as a political
activist protesting government action and spurring legal and political change in Pennsylvania. To
advance his activism, Mr. Stilp has consistently employed public, attention-getting methods as a
way to get his message across. He employs these methods because they work.

For example, in 2006, the Philadelphia Inquirer named Mr. Stilp one of its Citizens of the
Year for his successful efforts to lobby against the Pennsylvania Legislature’s 2005 pay raise. The
Inquirer described him as part of a “furious campaign against arrogant business-as-usual in the
State Capitol,” and noted that he has a “flair for the theatrical.” Indeed, part of the way Mr. Stilp

Mayer Brown is a global services provider comprising an association of legal practices that are separate entities including
Mayer Brown LLP (Illinois, USA), Mayer Brown International LLP (England), Mayer Brown (a Hong Kong partnership)
and Tauil & Chequer Advogados (a Brazilian partnership).
Mayer Brown LLP

Stilp v. Commonwealth
Page 2

managed to draw attention to, and rally support for, his opposition to the pay raise issue was by
displaying a “25-foot-high inflatable pink pig” near the Capitol building in Harrisburg.1

Similarly, in 2009, Mr. Stilp was name to the Pennsylvania Report’s “Report 100” list.
This annual list honors the “hundred people [who] . . . are most likely to have an impact on
government and politics in our Commonwealth in the year ahead.”2 Other honorees included Ed
Rendell, Arlen Specter, John Murtha, and Pat Toomey.3 The Pennsylvania Report wrote of Mr.
Stilp’s penchant for finding “new and certainly entertaining ways to get the media’s attention”
with his activism.4

In the immediate aftermath of the horrendous terrorist attacks of September 11, 2001, Mr.
Stilp—who is a certified firefighter and an EMT—“wasn’t willing to simply sit and watch TV
coverage . . . . He grabbed his helmets, and headed to New York City to volunteer” by “hand[ing]
out protective masks, and assist[ing] with building searches.”5 To honor those who died on Flight
93 on September 11, Mr. Stilp designed the Flight 93 Flag, which “made its first debut in
Shanksville in the July 4 parade in 2002” and which has “been part of the Sept. 11 ceremony ever
since.”6

Mr. Stilp’s public activism continues. This year, he has engaged in a number of peaceful
political protests in towns throughout central Pennsylvania that involve burning flags in public
spaces. The flags Mr. Stilp burns in his demonstrations are not American flags. They are
Confederate flags, Nazi flags, flags of the former Soviet Union, and Trump campaign flags. He
always burns them safely, in a metal trash can, consistent with his training as a firefighter.

In recent years, several local Pennsylvania officials have attempted to fine or cite Mr. Stilp
for his peaceful flag burning, typically under the auspice of a local “burn ordinance.” Mr. Stilp is
currently challenging the constitutionality of these ordinances in federal court. Indeed, in one
instance earlier this year in which Mr. Stilp burned Trump campaign flags in Harrisburg, the
district judge concluded that the local burn ordinance did not apply at all to Mr. Stilp’s peaceful

1
Editorial, Citizens of the Year, PHILA. INQUIRER, Jan. 1, 2006, available at
https://web.archive.org/web/20060104052321/http://www.philly.com/mld/inquirer/13524249
.htm
2
The Pennsylvania Report 100, PENNSYLVANIA REPORT, Vol. 23, No. 8-24, p. 14 (Jan. 23., 2009),
available at https://www.webcitation.org/5j0zKOG5a?url=http://www.pa-
report.com/uploaded_pdf/PA%20Report%20100%20-%20Jan%2023%2C%202009.pdf
3
Id. at pp. 2, 3, 6, 15.
4
Id. at p. 14.
5
Pennsylvania Firefighter Honors Flight 93 Victims With Flag, FIREHOUSE, Sept. 12, 2008,
available at https://www.firehouse.com/historical-incidents/news/10495980/pennsylvania-
firefighter-honors-flight-93-victims-with-flag
6
Id.

2
Mayer Brown LLP

Stilp v. Commonwealth
Page 3

protest, and, even if it did the statute would be unconstitutional as-applied. The district judge
accordingly dismissed the charges.7

B. Mr. Stilp’s August 13, 2020 Pottsville Protest and Arrest

On August 13, 2020, Mr. Stilp brought his peaceful flag burning protest to Pottsville. The
protest itself was not materially different from the numerous other times Mr. Stilp had burned
Trump campaign, Confederate, or Nazi flags. As he always does, he set up a metal trash can in a
safe, out-of-the-way location—in this case in a public parking spot that he had paid for. As he
always does, he then gave a political speech, and put a flag inside a metal trash can—in this case
a combined Trump 2020 and Confederate flag. He then set the flag on fire. In deference to the
authorities and to allay their safety concerns, Mr. Stilp actually changed the location of his protest
at the request of fire department officials, moving so that he would be 25 feet from anything
flammable.

The reaction of City of Pottsville officials, however, was significantly more aggressive
than other officials’ reactions to Mr. Stilp’s prior protests. In what certainly appears to have been
a premeditated effort to infringe upon Mr. Stilp’s First Amendment rights, a half-dozen police
officers and a fire truck responded. They shut down the street. The affidavit of probable cause
notes that this created “inconvenience to motorist [sic].” This inconvenience was caused by
Pottsville’s overreaction to Mr. Stilp’s protest, not by Mr. Stilp himself.

Mr. Stilp was not issued a citation and sent on his way like he had been every other time.
Instead, he was arrested and jailed. Mr. Stilp was handcuffed, fingerprinted, and incarcerated in a
holding cell for two hours. The entire time Mr. Stilp was incarcerated, he was handcuffed to a
bed. Ultimately, Mr. Stilp was charged with a crime: misdemeanor disorderly conduct pursuant to
18 Pa. Cons. Stat. § 5503(a)(4). All this for a safe and peaceful political protest.

As if this were not enough, a condition of Mr. Stilp’s bail requires that he “refrain from
criminal activity” pending trial. Given that the “crime” with which he was charged was nothing
more than a peaceful political protest, Mr. Stilp received Pottsville’s message loud and clear:
protest again, and we will arrest you again, seek to revoke your bail, and lock you up pending trial.

C. Mr. Stilp’s Bail Condition is an Unconstitutional Prior Restraint

America’s “distaste for censorship—reflecting the natural distaste of a free people—is

deep-written in our laws.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1976).
For precisely this reason, the Supreme Court has roundly rejected prior restraint as presumptively

7
Charles Thompson, Harrisburg activist gets Trump flag-burning citation thrown out,
HARRISBURG PATRIOT NEWS, Feb. 11, 2020, available at
https://www.pennlive.com/news/2020/02/harrisburg-activist-gets-trump-flag-burning-
citation-thrown-out.html.

3
Mayer Brown LLP

Stilp v. Commonwealth
Page 4

unconstitutional. See, e.g., Near v. Minnesota, 283 U.S. 697, 713 (1931) (the First Amendment’s
“chief purpose” is “to prevent previous restraints” on speech); Nebraska Press Ass’n v. Stuart, 427
U.S. 539, 559 (1976) (“[P]rior restraints on speech . . . are the most serious and least tolerable
infringement on First Amendment rights.”).

“Prior restraint” is “a term of art referring to judicial orders or administrative rules that
operate to forbid expression before it takes place.” 2 Smolla & Nimmer on Freedom of Speech §
15:1. “[C]ourt orders that actually forbid speech activities . . . are classic examples of prior
restraints.” Alexander v. United States, 509 U.S. 544, 550 (1993).

The bail condition that Mr. Stilp “refrain from criminal activity” pending trial is plainly a
prior restraint. The “crime” for which Mr. Stilp was arrested in the first place was undeniably
protected speech. Texas v. Johnson, 491 U.S. 397 (1989). Accordingly, it is entirely feasible that
should Mr. Stilp protest again—which he desires to do—he will be arrested again and charged
with the same “crime.” This would not only expose him to another criminal charge, it would violate
his bail condition in the present case. In short, the bail condition is a court order that “operate[s]
to forbid” Mr. Stilp’s “expression before it takes place.” 2 Smolla & Nimmer on Freedom of
Speech § 15:1. The bail condition is a prior restraint and therefore “bear[s] a heavy presumption
against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).

It is immaterial that the bail condition does not explicitly say that Mr. Stilp “cannot
protest.” A prior restraint exists when the facts show that the government used its power indirectly
or informally to prohibit expression. See id. at 67 (unconstitutional prior restraint existed where
the government imposed a “system of informal sanctions” and “the record amply demonstrate[ed]”
that the government “deliberately set out to achieve the suppression” of speech “deemed
‘objectionable’ and succeeded in its aim”); see also Backpage.com LLC v. Dart, 807 F.3d 229, 230
(7th Cir. 2015) (Posner, J.) (government’s “campaign intended to crush” website’s adult section
by demanding that credit card companies stop processing payments for “any ads [on the website]
. . . even those that advertise indisputably legal activities” was an unconstitutional prior restraint).
Put simply, the bail condition requires that Mr. Stilp stop protesting or “face the possibility” of a
“court action against [him].” Bantam Books, 372 U.S. at 63. The Constitution does not permit this.

Accordingly, we request—at a minimum—that your office agree to amend the bail

condition to clarify that further “crimes” does not include further First Amendment activity.

D. Mr. Stilp’s Arrest and Misdemeanor Charge Violate the First Amendment

Based on the facts, this case is nearly identical in all material respects as Texas v. Johnson.
In Johnson, just as here, the defendant burned a flag as part of a demonstration. In Johnson, just
as here, the “political nature of this conduct was both intentional and overwhelmingly apparent.”
491 U.S. at 406. Critically though, unlike this case, Johnson involved burning an American flag
whereas Mr. Stilp’s peaceful protest involved burning the flags of the Confederacy and a political
campaign. A critical issue in Johnson was the symbolic weight carried by the American flag. See

4
Mayer Brown LLP

Stilp v. Commonwealth
Page 5

id. at 405 (“[T]he [American] flag as readily signifies this nation as does the combination of letters
found in ‘America.’”).

Like Mr. Stilp, the defendant in Johnson was convicted of “breaching the peace.” See id.
at 401. And here, like in Johnson, “no disturbance of the peace actually occurred or threatened to
occur” because of Mr. Stilp’s peaceful protest. Id. at 408. Pottsville authorities’ heavy-handed
reaction notwithstanding, the facts show that Mr. Stilp’s protest was peaceful and safe. Mr. Stilp
set up a trash can out of the way in a public parking spot that he himself paid for. He then lit the
flag on fire inside that trash can. He had done this numerous times before in numerous cities and
towns across Pennsylvania and none of those governments arrested him for a crime. The record
does not reflect any actual danger to anyone.

Indeed, it is unlikely that your office has sufficient evidence to obtain a prosecution in the
first place. In order to convict Mr. Stilp, you will be required at trial to show, among other things,
that his peaceful protest “create[d] a hazardous or physically offensive condition” which “serve[d]
no legitimate purpose.” 18 Pa. Cons. Stat. § 5503(a)(4). A “‘hazardous condition’ is a condition
that involves danger or risk.” Commonwealth v. Mauz, 122 A.3d 1039, 1042 (Pa. Super. 2015)
(citing Commonwealth v. Williams, 394 Pa. Super. 90, 574 A.2d 1161, 1164 (1990)). A “physically
offensive condition” is a “direct assault[] on the physical senses of members of the public” akin to
setting off a “stink bomb,” strewing “rotten garbage in public places” or shining “blinding lights
in the eyes of others.” Id. Under these standards, Mr. Stilp’s peaceful protest simply does not meet
the elements of the crime with which he was charged.

Even if Mr. Stilp’s protest met the definition of a “hazardous or physically offensive
condition”—which it does not—it would still fall outside the scope of § 5503(a)(4). That is because
such conduct is permissible if it serves a “legitimate purpose,” which plainly includes
constitutionally-protected activity. Indeed, the “statute demonstrates a narrowly confined exercise
of the Commonwealth’s police powers, which cannot be utilized to prohibit constitutionally
protected conduct.” Commonwealth v. Roth, 366 Pa. Super. 575, 531 A.2d 1133, 1140 (1987).

In the end, just as in Texas v. Johnson, Mr. Stilp’s arrest and misdemeanor criminal charge
“amounts to a claim that an audience that takes serious offense at particular expression is
necessarily likely to disturb the peace and that the expression may be prohibited on that basis.”
491 U.S. at 408. The Supreme Court rejected this argument and we are confident the same result
will occur here if this matter is fully litigated.

The especially tenuous nature of the criminal charge against Mr. Stilp, moreover, raises
serious questions about the actual motivation for his arrest and prosecution. Given the facts, it
seems highly unlikely that Mr. Stilp’s arrest was motivated by a genuine concern for public safety.
It seems far more likely that the Pottsville authorities view Mr. Stilp as a pest with an unpopular
message. After all, Mr. Stilp’s protests are intended, explicitly, to criticize President Trump, who

5
Mayer Brown LLP

Stilp v. Commonwealth
Page 6

is popular in Pottsville.8 Moreover, as noted above, (a) Mr. Stilp is well-known throughout
Pennsylvania as an activist who engages in dramatic protests; and (b) none of Mr. Stilp’s prior flag
peaceful burning demonstrations resulted in criminal charges.

* * *

We strongly urge you to reconsider the unconstitutional criminal charge against Mr. Stilp.
It should be dropped altogether. At a bare minimum, his bail condition should be amended so that
it is clear that he will be permitted to continue engaging in protests during this election year. At
the moment, Mr. Stilp is hesitant to continue exercising his First Amendment rights due to a
reasonable concern of further criminal prosecution. The Constitution does not permit this state of
affairs.

To be absolutely clear, we strongly prefer a resolution to this matter that does not involve
seeking injunctive relief in federal court. But we will do so if we must. The constitutional issues
implicated here are too important to let go.

We are happy to discuss this matter with you in an attempt to resolve it. Otherwise, we
will be forced to seek federal court intervention. We request that you, or someone in your office
with decision-making authority, contact us by 5:00 pm Eastern on Wednesday, September 2, 2020.

Respectfully,

/s/ Geoffrey M. Pipoly

cc: Aaron Martin, Esq.

8
In the 2016 election, President Trump received 44,001 votes in Schuylkill County compared with
Hillary Clinton’s 16,770. See Pennsylvania Results, N.Y. Times, Sept. 13, 2017, available at
https://www.nytimes.com/elections/2016/results/pennsylvania.