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Appeals judge rules Facebook rant protected by First Amendment (UPDATE)

Thomas Smith

Thomas Smith

An Arena man who lashed out on a police department’s Facebook page is protected by First Amendment rights, the Court of Appeals ruled Thursday.

Prosecutors had argued that comments posted by Thomas Smith, 25, were “fighting words,” or those that could incite a fight or disturbance.

According to the opinion, the Arena Police Department posted a note on its Facebook page thanking citizens who helped them apprehend two juvenile burglary suspects. In response, Smith posted an expletive-filled message stating “F— the f—ing cops they ant [sic] sh–,” and called the police and others racists. According to court documents, his post included the use of the word “nigers” which prosecutors argued was a misspelled racial slur meant to push the police into acting violently.

Smith was charged with disorderly conduct and unlawful use of a computerized communication system.

He asked Iowa County Circuit Judge William Dyke to throw out the case, claiming it was protected speech under the First Amendment. Dyke denied the request and Smith was found guilty by a jury. He was sentenced to 25 hours of community service and a year of probation, with the possibility of expunction.

But the appellate court, in an opinion authored by District 4 Judge Paul Lundsten, overturned the jury’s verdict and sent the case back.

According to Lundsten’s opinion, he saw no relevant cases that showed fighting words were chargeable in anything other than face-to-face contact. And Smith’s use of the misspelled slur likely just left most readers wondering “who Smith meant to label with the slur,” Lundsten wrote.

“In rejecting the State’s arguments, I need not and do not conclude that on-line communications could never be fighting words,” according to the opinion. “However, I see nothing in the State’s briefing or in the facts … to conclude that Smith’s Facebook comments are fighting words.”


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