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Man sues police over Facebook deletions (UPDATE)

Associated Press

MADISON, Wis. (AP) — A man who got arrested after he posted Facebook comments calling a southwestern Wisconsin police department racist has filed a federal lawsuit alleging one of the agency’s officers violated his constitutional rights.

Thomas G. Smith posted profanity-laced comments on Facebook that called police officers in Arena racists in July 2012. He posted the remarks in response to a police Facebook posting several days earlier thanking community members for helping detain two black juveniles who were fleeing officers.

According to the lawsuit filed Monday, an officer, Nicholas Stroik, saw Smith’s comments and deleted them, along with comments from two other people who accused police of targeting black people.

Police then called Smith, who was living in Arena at the time, and asked if he had posted the remarks attributed to him. He told officers he wrote the comments and he meant them. Later that night officers arrested him at his home and took him to jail, the lawsuit said.

Prosecutors later charged him with disorderly conduct and unlawful use of computerized communications. They contended his comments amounted to fighting words, defined by the U.S. Supreme Court as utterances that have nothing to do with the exchange of ideas and can incite an immediate breach of the peace.

A jury convicted him and he was sentenced to probation and community service. A state appellate judge, however, tossed his convictions out in July, ruling that the fighting words doctrine doesn’t apply when the speaker and listener aren’t in close physical proximity and that Smith’s comments amounted to protected free speech under the U.S. Constitution.

Smith, now 26, filed the new lawsuit in Madison. It seeks unspecified damages and attorney fees from Stroik, arguing the officer decided to retaliate against him for his comments by having him arrested and recommending prosecutors charge him.

The lawsuit also seeks unspecified damages and attorney fees from the Village of Arena for failing to properly train Stroik on the U.S. Constitution.

The lawsuit contends Stroik’s moves to initiate Smith’s arrest and prosecution amounted to an unreasonable search or seizure, violated his equal protection rights and would likely deter free speech.

The village also failed to explain the free speech protection others who posted comments on Facebook enjoy, the lawsuit added, alleging Stroik improperly discriminated against the department’s critics by deleting their comments but leaving up supporters’ remarks.

Stroik said Tuesday he hadn’t seen the lawsuit and declined to comment. The village’s attorney and insurance company didn’t immediately return messages.

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