Facebook Comments Protected Under The First Amendment, Wisconsin Judge Rules

| by Jared Keever

A Wisconsin judge ruled Thursday that one man’s vulgar comments, made on a police department’s Facebook page, did not amount to fighting words and should have been considered protected speech. 

Fourth District Court of Appeals Judge Paul Lundsten overturned Thomas Smith’s misdemeanor convictions for disorderly conduct and unlawful use of a computerized communications system. 

Prosecutors charged Smith, of Arena, Wis., in 2012 after he posted profane comments in response to a message the Arena Police Department posted on its own Facebook page thanking local citizens for their help in apprehending two black juveniles in the area. 

In Smith’s profanity-filled comments he called the officers “f****** racist basturds [sic]” and likened them to male genitalia. 

A jury convicted Smith in May 2013. He was sentenced to probation and community service. 

Smith, now 25, argued in his appeal that his comment was protected under the First Amendment’s free speech guarantee. 

According to On Point, prosecutors in the case argued that Smith’s comments, because they were made towards police officers “fresh on the heels of a racially charged and dangerous situation in the community,” had the tendency to incite violence against the officers. Such a tendency rendered them fighting words and not protected as free speech, they said.

The U.S. Supreme Court defined fighting words and excluded them from free speech protection in 1942. The court said utterances that "are no essential part of any exposition of ideas” and could incite an immediate breach of peace could be excluded from First Amendment protection.

Smith argued that remote communications can’t be considered fighting words because they are not able to incite immediate retaliation the same way face-to-face confrontations can. 

Judge Lundsten agreed with Smith’s argument saying the facts didn’t show a tendency to incite an immediate breach of peace as required by the Supreme Court’s definition. He cited cases in five other states where judges considered the physical proximity of two parties while refusing to apply the fighting words doctrine. 

"Given this case law, I fail to see how Smith's Facebook comments can properly be labeled fighting words," Lundsten wrote in his decision, according to The Associated Press.

Iowa County District Attorney Matthew Allen has not said whether he plans to appeal the decision to the state Supreme Court.

Sources: On Point, SF Gate (AP Story)