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Comments posted on police department’s Facebook page weren’t “fighting words”

State v. Thomas G. Smith, 2013AP2516-CR, District 4, 7/3/14 (1-judge; ineligible for publication); case activity

The profane comments Smith posted on a police department’s Facebook page are not “fighting words” because that category of unprotected speech only covers statements made in the context of a face-to-face communication.

The Arena police posted a story on their Facebook page about the arrest of two “out-of-state juvenile males.” (¶2). The story prompted some uncomplimentary comments describing the police (and the citizens who assisted in locating the juveniles) as racist. (¶3). Smith authored two of those comments, employing a liberal amount of common profanity (e.g., “fucking racist basturds [sic]”) and a single misspelled racial slur. (¶4). For his comments Smith was charged with disorderly conduct, § 947.01, and unlawful use of a computerized communication system, § 947.0125(2)(c). (¶5).

Smith moved to dismiss on the ground his comments were protected by the First Amendment, but the circuit court held the comments were unprotected “fighting words.” (¶¶5, 6). The court of appeals reverses. Smith argued (and the state conceded) that cases from other jurisdictions show the “fighting words” doctrine has been applied only in the context of communications made during a face-to-face encounter, and the court follows the lead of those cases. (¶¶11-15). There was no allegation or evidence that Smith was in physical proximity to the police when he posted his comments, so his comments can’t be “fighting words.” (¶¶4, 16).

The state alternatively argues that even if Smith’s comments were not made in person, the fact they were made toward police officers “fresh on the heels of a racially charged and dangerous situation in the community” shows they had a tendency to incite a breach of the peace in the form of violence against the police. (¶18). While “context matters,” the court says the facts don’t show a tendency to incite an immediate breach: “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.” (¶19). If the state is arguing Smith’s comments may have incited others to violence against the police, it is invoking “a related but different test” under Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (First Amendment doesn’t protect “advocacy [that] is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”). This argument is inadequately developed and, even if it had been developed, there is “no apparent reason that it would have prevailed.” (¶19).

Smith’s handsomely done argument relies on numerous cases from other jurisdictions, many of which are in turn cited by the court’s decision (¶14-15). Smith also pointed out that the physical proximity requirement arises from Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the original “fighting words” case. Chaplinsky upheld a prosecution under a statute that, as “authoritatively construed” by state courts, covered only “face-to-face words plainly likely to cause a breach of the peace by the addressee,” or speech having “a direct tendency to cause acts of violence by the persons to whom, individually, the remark is addressed,” 315 U.S. at 572-73. While the court of appeals says it “need not and do[es] not conclude that on-line communications could never be fighting words” (20), there would seem to be few, if any, situations in which an on-line communication could constitute “fighting words,” given the consensus in the case law that the doctrine is limited to face-to-face communication.

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