Crime to post comments containing vulgar insults on police department Facebook page?

From today’s State v. Smith (Wisc. Ct. App. July 3, 2014) (one-judge nonprecedential order) (some paragraph breaks added):

Thomas Smith appeals a judgment convicting him, after a jury trial, of disorderly conduct and unlawful use of a computerized communication system. The convictions for these misdemeanor crimes were based on two comments Smith posted on a police department Facebook page. Smith argues that the circuit court should have granted his motion to dismiss because his Facebook comments were protected speech.

The State argues that the comments are not protected speech because they are “fighting words.” The State does not persuade me that Smith’s comments can reasonably be construed as fighting words. And, the State’s briefing provides no other basis on which to uphold Smith’s convictions. Accordingly, I reverse and remand for the circuit court to vacate the judgment and dismiss the charges against Smith….

On July 20, 2012, the Village of Arena police department posted a status update on its official Facebook page:

We would like to thank the citizens … that assisted the Arena Police Department in attempting to locate two out-of-state juvenile males. The juveniles ran from a Sharon Street address after an officer attempted to make contact with them…. The same two males along with a third local juvenile male were also arrested later the same evening for burglary of a business…. Two of the males were detained by residents until law enforcement arrived, the third male was located and arrested a short time later….

Within the next 24 hours, several Facebook users posted comments on the police Facebook page. Some of the users appeared to have knowledge or opinions, or both, about the underlying facts of the arrests. The comments included:

Thanks for searching my house and accusing me of harboring so called dangerous fugitives … and since when is it ok for a resident to point a gun at a couple [o]f KID’S [sic] heads? If that was anyone else’s kids pretty sure it would be a big deal. Oh wait though, they were black so [i]t’s ok. Thanks to everyone that made our town look like nothing but a racist, prejudice[d] place to live. I’m embarrassed to say I’m part of that kind of community. If I were black I’d run too.

And don’t anybody say it isn’t about race because it is when I ask the cop specifically what they look like and his response is they will stand out because they don’t belong here[.]

Sooo happy I left that town.

Good thing the s[c]enario didn’t go down in my hood it would have ended a lot differently … bang sheee bang[.]

Smith posted two comments, subsequent to those quoted above, which read:

Fuck the fucking cops they ant shit but fucking racist basturds an fucking all of y’all who is racist[.]

Fuck them nigers policy bitchs wat the you got on us not a darn thing so fuck off dicks[.]

There was no allegation, and no evidence at trial, that Smith was in physical proximity to Arena police when he posted his comments.

Based on Smith’s comments, the State charged Smith with disorderly conduct and with unlawful use of a computerized communication system. Smith moved to dismiss the charges on First Amendment grounds. In opposing Smith’s motion, the State argued that Smith’s Facebook comments were not protected speech because they were fighting words. The circuit court denied Smith’s motion…. The jury found Smith guilty on both counts….

Smith argues that “remote” communications like his do not fall within Chaplinsky [one of the leading Supreme Court precedents on "fighting words" -EV]. He argues, as I understand it, that remote communications generally cannot be fighting words because they have no similar tendency to incite an immediate breach of the peace by provoking the listener to immediate action against the speaker. Smith asserts that courts have declined to apply the fighting words doctrine outside of the face-to-face context.

The State concedes that “other states have declined to apply the fighting words doctrine in instances not involving such immediate contact.” The State nonetheless argues that Smith’s particular Facebook comments are fighting words….

As far as I can tell, Chaplinsky has rarely if ever been applied outside of the face-to-face context. [Discussion of out-of-state precedents omitted.-EV] Given this case law, I fail to see how Smith’s Facebook comments can properly be labeled fighting words.

The State appears to argue that Smith’s use of a misspelled racial slur (“niger”) was intended to describe the police and that directing this racial slur at police supports a conclusion that Smith’s comments are fighting words because those comments have a tendency to incite the police to violence. I disagree. First, a reasonable reader of Smith’s disjointed words would wonder who Smith meant to label with the slur. Second, the State’s authorities in support of this argument each involve situations in which the slur was directed at the recipient in person.

The State also argues that, given the context of Smith’s Facebook comments, his comments had a tendency to incite an immediate breach of the peace even though they were not made in person. The State argues that the pertinent context is that Smith’s comments were “directed … towards the officers of the Arena police department, and fresh on the heels of a racially charged and dangerous situation in the community.” For support, the State points to evidence that the juveniles the police arrested were black and were detained at gunpoint by private citizens until the police arrived. As best I can tell, this amounts to an alternative argument that Smith’s comments are fighting words because they have a tendency to incite others to violence directed toward the police. If the State means to make this argument, I am not persuaded.

I agree with the State that context matters, but the facts of this case do not persuade me that Smith’s comments had a tendency to incite an immediate breach of the peace by others against the police. The State’s argument and supporting evidence are simply too vague as to who Smith’s comments would have incited and what immediate breach of the peace might have resulted.

Moreover, if the State means to argue that Smith’s comments may have incited others to violence against the police, this seems to implicate a related but different test under Brandenburg v. Ohio, 395 U.S. 444 (1969). See id. at 447 (“[C]onstitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”)….

The appellate judge’s opinion strikes me as entirely correct, and it’s a shame that the case had to go this far.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. Volokh is the author of the textbooks The First Amendment and Related Statutes (4th ed. 2011), The Religion Clauses and Related Statutes (2005), and Academic Legal Writing (4th ed. 2010), as well as over 70 law review articles. Volokh is also an Academic Affiliate for the Mayer Brown LLP law firm.
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