Thomas G. Smith made a fundamental error: he assumed that as an American he had a right to use blunt language to criticize the police.
Legally, he was right. Practically, he was wrong.
Practically speaking, we live in a country where mouthing off to the cops is a good way to get brutalized or held at gunpoint. Practically speaking, we live in a country that may eventually vindicate your right to insult a cop, but will do so only after the system has had its way with you for a while.
Thomas G. Smith learned this to his regret.
Smith was annoyed at the Village of Arena Police Department for their boasts on Facebook about finding two young men who failed to respect their authority:
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 ….
Several Facebook pointed out that it is perfectly rational for young people to fear and mistrust police and run from them. Thomas G. Smith posted making this point in vulgar terms:
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[.]
As this is real America, not the America in which we would like to believe, Iowa County prosecutors charged Smith with "disorderly conduct" and "unlawful use of a computerized communication system," which is a long-winded way to say "contempt of cop." A trial judge rejected Smith's First Amendment challenge to the charges, and a Wisconsin jury convicted him on both counts.
Last week the Wisconsin Court of Appeals reversed the conviction. The state invoked the "fighting words" doctrine, originally applied to face-to-face insults likely to provoke an immediate fight. The Court of Appeals correctly rejected this argument, agreeing with the prevailing authorities across the nation that the "fighting words" exception to the First Amendment only applies to face-to-face confrontations likely to create an immediate breach of the peace. In other words, you can't try to apply the exception to online insults. Moreover, the court rejected the state's argument that Smith's statement could be treated as incitement, finding that it could not meet the Brandenburg test requiring proof of a clear and present danger of imminent lawless action.
This was not a difficult call. Eugene Volokh puts it very mildly: "The appellate judge’s opinion strikes me as entirely correct, and it’s a shame that the case had to go this far." In the spirit of Thomas G. Smith, let me be more blunt: this prosecution obviously violated the First Amendment and the police, prosecutors, trial judge, and jurors should be ashamed of themselves for participation in rank censorious thuggery.
Note that the court did not invoke one familiar argument — that the "fighting words" doctrine cannot apply to insults directed to police, because the law should presume they are above reacting to words with violence. That's just as well, it's not a credible argument in modern America. It is, in fact, perfectly plausible that insulting the Village of Arena Police Department may provoke violence from them.
This case illustrates an important point about exceptions to the First Amendment. Every twerp and dipshit and yahoo who wants to criminalize the speech they personally hate cries "but fighting words aren't protected!" Censorship advocates cite the fighting words doctrine as justification to outlaw blasphemy and "hate speech," and assert that their proposed restrictions will be used to protect the powerless. They're wrong. They're fools or liars. Exceptions to free speech will inevitably be used to protect police and others in power, not to protect the weak. Police, given the chance, will try to invoke specious First Amendment exceptions to charge you with witness intimidation if you criticize them or threaten to investigate you for speaking out against the war on drugs or try to search you for making satirical cartoons about them. Indeed, in this case the state explicitly invoked the arguments of the criminalize-hate-speech crowd: they argued that Smith's use of a (misspelled) racial epithet took his words outside of First Amendment protections. They invoked that argument even though the speech in question represented Smith's criticism of police for targeting African-American kids. That is exactly the sort of cynical argument you can expect if we accept a broad reading of "fighting words."
Also, ask yourself this: how safe do you feel, protected by the sort of people who want to prosecute someone for dissing them on Facebook?
Via Joseph Grabko and Free Thought Project.
Update: Looks like the Village of Arena PD is deleting unflattering posts on their Facebook page. That's a major improvement from arresting and prosecuting people for mean posts. Baby steps, people. Baby steps.
Last 5 posts by Ken White
- Free Speech Triumphant Or Free Speech In Retreat? - June 21st, 2017
- The Power To Generate Crimes Rather Than Merely Investigate Them - June 19th, 2017
- Free Speech, The Goose, And The Gander - June 17th, 2017
- Free Speech Tropes In The LA Times - June 8th, 2017
- I write letters - June 1st, 2017