Thomas Smith, posted comments to his local police departments Facebook page when the department initiated a search for two juvenile males.
Smith was upset over his encounter with police and he went to their page to let them know.
“Thanks for searching my house and accusing me of harboring so called dangerous fugitives … and since when is it ok for a resident to point a gun at a couple [o]f KID’S [sic] heads? If that was anyone else’s kids pretty sure it would be a big deal. Oh wait though, they were black so [i]t’s ok. Thanks to everyone that made our town look like nothing but a racist, prejudice[d] place to live. I’m embarrassed to say I’m part of that kind of community. If I were black I’d run too.” Smith posted online. “And don’t anybody say it isn’t about race because it is when I ask the cop specifically what they look like and his response is they will stand out because they don’t belong here[…]” Sooo happy I left that town. Good thing the s[c]enario didn’t go down in my hood it would have ended a lot differently … bang sheee bang[.]
Smith posted two comments, subsequent to those quoted above, which read:
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[.]
The court took these words to be “fighting words” and consequently charged Smith with disorderly conduct and unlawful use of a computerized communication system.
After he was first charged and found guilty , Smith appealed his case and the new court admitted the lack of evidence against him and reversed the sentence.
Smith, argued on appeal that his comments were protected under the First Amendment’s free speech guarantee and that the government had no authority to punish him for making them.
The new court concluded, “The State does not persuade me that Smith’s comments can reasonably be construed as fighting words.”
It was even further stated that “no reasonable fact finder could conclude on this record that Smith’s Facebook comments were fighting words.”
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.
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 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.