Arena, WI man Thomas G. Smith says that police violated his rights when they arrested him in July of 2012 after he posted an angry comment on a status on the Arena Police Department’s now-deleted Facebook page. According to The Star Tribune, Arena police posted a status pertaining to the detention of two African-American teens, upon which Smith commented, calling the officers racists in a tirade that included profanity. Smith was charged with and convicted of unlawful use of computerized communications and disorderly conduct before a state-level appellate judge overturned the conviction, citing freedom of speech. Lawyers representing Smith subsequently filed a federal lawsuit last Monday alleging that police violated his rights by arresting him for the comment.
After Smith made his feelings known on Facebook, Officer Nicholas Stroik allegedly deleted the comment along with comments by two other community members who accused the officers of conducting racial profiling. Arena police then reportedly called Smith on the telephone to confirm whether or not he posted the comment. Smith proudly replied that he did and specifically pointed out that he meant what he said. Officers then visited Smith at home and arrested him, citing the fighting words legal doctrine that limits speech intended to directly cause violence.
A local jury convicted Smith of the charges against him, and he was sentenced to community service. However, the conviction was overturned on appeal, as an appellate judge found that Smith’s posting of an angry comment with vulgarities from his own home miles from the police station constituted protected free speech. The judge indicated that Smith’s comments could not be viewed as fighting words if he was not located within close proximity to the officers at the time that he made them. In the case Cohen v. California, the US Supreme Court held that vulgarities are protected speech under the First Amendment.
Smith’s lawsuit alleges that the Village of Arena failed to train Nicholas Stroik on constitutional rights, that his arrest violated Smith’s First, Fourth, and Fourteenth Amendment rights, and that officers deleted the comments of critics on Facebook while leaving up comments by supporters, thus using public law enforcement resources to censor citizens on the basis of their views. The suit also points out the fact that, by attempting to punish Smith for his comments critical of the Arena Police Department, Stroik’s actions could have the effect of chilling free speech as publicity surrounding the arrest could cause others who would speak out to remain silent out of fear of retaliation.