Wisconsin appeals judge rules slurs against police posted on Facebook are not 'fighting words'

  • Article by: TODD RICHMOND , Associated Press
  • Updated: July 3, 2014 - 3:25 PM

MADISON, Wis. — A southern Wisconsin man's vulgar Facebook remarks insulting police don't amount to fighting words because they were made remotely and qualify as protected speech, an appellate judge ruled Thursday.

Fourth District Court of Appeals Judge Paul Lundsten threw out Thomas Smith's misdemeanor convictions for disorderly conduct and unlawful use of a computerized communications system, finding that decisions in similar cases around the country concluded that fighting words must be uttered face-to-face.

Prosecutors charged Smith, of Arena, in 2012 after he posted profanity-laced comments on Facebook calling Arena officers racists and likening them to male genitalia, among other slurs. He posted the remarks in response to a police Facebook posting thanking community members for helping detain two black juveniles who were fleeing officers.

A jury convicted Smith in May 2013. He was sentenced to probation and community service a couple weeks later. Smith, now 25, argued on appeal that his comments were protected under the First Amendment's free speech guarantee. He argued the government had no authority to punish him for making them.

Prosecutors contended that Smith's comments amounted to fighting words, which aren't protected by the First Amendment. The U.S. Supreme Court defined fighting words in 1942 as utterances that "are no essential part of any exposition of ideas" and inflict injury or tend to incite an immediate breach of the peace.

Smith countered remote communications can't be fighting words because they do not incite the immediate retaliation that could occur in face-to-face confrontations.

Fourth District Court of Appeals Judge Paul Lundsten sided with Smith. He pointed to cases in Montana, Alaska, Arizona, Nebraska and Washington where judges refused to apply the fighting words doctrine when the speaker and listener weren't in close physical proximity.

"Given this case law, I fail to see how Smith's Facebook comments can properly be labeled fighting words," the judge wrote.

Iowa County Assistant District Attorney Matthew Allen declined comment in an email to The Associated Press, saying that his office hasn't decided whether to ask the state Supreme Court to take the case.

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