Watch Your Mouth, Or The Village Of Arena Police Department May Get Violent

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?

Do you think this is outrageous? Maybe you could let the Village of Arena Police Department know by email or on Facebook here or here.

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


  1. Dan Weber says

    I swear I keep on reading "Village People" in this post, somehow.

    Good to see you back.

  2. Quiet Lurcker says

    Welcome back! Hope all is well. To my point, then.

    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.

    Isn't removing unflattering posts in and of itself, a form of censorship under 1st Amendment. I mean, kudos to the cops for not arresting/threatening/etc. over those posts, but still…I'd allow intentional lies to be removed after due process, but to simply remove unflattering posts unilaterally? Not in my book.

    Looks like these cops need to review their 1st Amendment law before proceeding any further with this facebook thingy.

  3. Dan Weber says

    To a first approximation, they are allowed to delete posts the same way Popehat can delete all my posts or replace them with "I like to eat paste."

    I could see it happening that, since they are a public entity, they could be required to leave all posts up on a social media site, but I think it would be significantly new precedent to establish that. But I'm not the lawyer here.

  4. Zack says

    They can't and shouldn't be required to keep all the posts on there- but we can mock them and criticize them for deleting negative posts, just like we would if this was a publisher, a clothes company, a car company, or what have you. They have every right to manage their profile on a social media site as they please- and we have every right to criticize them for it, and for their conduct elsewhere.

  5. Dan says

    Fellow Wisconsinites, here's a handy printable map for avoiding the craphole of Arena, should you ever need to traverse the stretch of US-14 between Spring Green and Mazomanie… It's just a 15-minute detour and it's quite scenic.

  6. MrSpkr says

    I don't think deleting the posts is a First Amendment violation at all, any more than throwing away a bunch of flyers someone tapes to the police station door would be a violation of first amendment rights.

    It might, however, be a violation of whatever law Wisconsin has regarding open records or freedom of information.

  7. SarahW says

    I don't think I'd be mocking anyone for removing similar foul-language posts. Curse and abuse statutes wouldn't apply, but editorial discretion ought to.

  8. Jordan says

    Glad you're back Ken!

    Regarding the update to this post, that the Village of Arena PD is deleting items from its Facebook wall, I have a question that maybe someone can shed some informed light on.

    Is it legal for the department to do this? As more official agencies adopt social networking as a way to interact with constituents, doesn't this make the Facebook wall a de facto communication channel subject to freedom of information act or records preservation requirements? Truly curious how some of these technologies interact with laws such as FOIA.


  9. says

    Why do the cops get a free pass to engage in lawfare against those who criticize them, even profanely?

    Police should be held to a higher standard than the rest of us, because they are granted a public trust to wield power in performing a vitally necessary function. Need I repeat Uncle Ben's catchphrase from Spider-Man?

    And, if they don't like it, they have the same option available to anyone on the public payroll: they're free to resign and go work for a living.

  10. says

    As far as I can tell they've nuked the Facebook pages for both the Arena PD and the City of Arena.

    Aw guys. Don't be like that.

  11. says

    What's striking here is that an entire county government ceded the moral high ground to the freelance publisher of a semiliterate, over-the-top internet tirade including dubious claims of racism and an excessive helping of the heavy seven. I guess government is just a name for the things we do together, like trashing the First Amendment in order to escalate a flame war started by the village crank.

    This sort of censorious idiocy seems to be proliferating in governments on both sides of the Atlantic. There are similar stories coming from British police agencies, which were formerly world-class models of civility and restraint. Agencies whose officers twenty or thirty years ago accepted without reservation that their jobs required the use of minimum force and maximum civility to deal with the craziest motherfuckers in all of London are now increasingly staffed by thin-skinned, grandiose, officious shitheads who have no street smarts. It's more or less the same mentality responsible for the US Customs officer who believed, apparently sincerely, that a couple of trash-talking British tourists had flown to Los Angeles to disinter Marilyn Monroe's corpse.

    Incidents like these are bad news. They suggest that our societies are in terminal decline.

    It doesn't take a hell of a lot of street smarts to know how not to escalate disputes with people like Thomas G. Smith. It's quite simple: don't respond to them. Just shut up. All a public response does is to legitimize their shrill complaints. If I may slightly misquote the Honorable Rod R. Blagojevich 40892-424 (and I doubt he'll object too strenuously), silence is fucking golden, and you don't want to give it away for fucking nothing.

  12. ZarroTsu says

    "unlawful use of a computerized communication system,"

    I wonder if, 100 years ago, there was a similar case for "unlawful use of a carrier pigeon".

  13. JDS says

    Would deleting posts on their facebook page count as Destruction of Government Records/Property?

    edit: I see this was already asked.

  14. Fasolt says


    "…are now increasingly staffed by thin-skinned, grandiose, officious shitheads who have no street smarts."

    Well said, Sir.

  15. gramps says

    It's nice that a man of such eloquence was [eventually] exonerated.

    As to unlawful use of a computerized communication system, all I see in the posted version of his act is, in a paraphrase of Professor Henry Higgins, the cold-blooded murder of the English tongue.

    Welcome back, Ken. I've missed your perspective…

  16. John Fast says

    Never mind ceding the moral high ground: since they deleted their website, does that mean someone else can use to set up a satirical website?

    Anton Sherwood: Don't laugh, because the cops shoot friendly puppies all the time.

  17. That Anonymous Coward says

    And once in a while we get a very clear look at who our leaders REALLY are. Thinskinned and willing violate laws, because they are somehow different, above that. Insulting them is the worst sin.

    The bigger sin is all of the people who will support these idiots blindly never knowing that tomorrow they might say the wrong thing and end up in the same situation. You might get out of it in the end, but you still have to pay for the misconduct of those who are supposed to know better.

  18. Rick Coker says

    Deleting anything from a government controlled media could very well be a violation of the States public records policy. Maybe a FOIA request should be made.

  19. Rob says

    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.

    Heh. Certain bloggers have coined an ironic term for this: "Reasoned Discourse(TM)", so called because the people who resort to it are generally the type who say they just want a "reasoned discourse" or "rational discussion" on the subject at hand and then proceed to remove or censor any dissenting opinions, no matter how logical and polite, from any medium they hold sway over, shutting down any and all discourse of the non-echo variety completely. It's a tactic generally used by people who are not very secure in their position.

  20. AlphaCentauri says

    Who knows what the laws actually say, but common sense would say that they can remove their own and guests' posts from their facebook wall, but they have to preserve complete copies in case anyone asks to see them.

  21. QHS says

    Even a page managed by a town government is still ultimately the property of Facebook. There's probably language deep in their terms and conditions that you agree that your comments can be deleted by page admins.

  22. sinij says

    It would be interesting if someone filed FOIA request concerning all deleted posts.

  23. andrews says

    The law, at least in Florida, is evolving on this. The standard wisdom is that you have to preserve electronic communications, and that is now being interpreted by most [entity] attys as including personal e-mail accounts which are used for [entity] business.

    Things like facebook pages may be more problematic. In a certain sense, the [entity] is providing a forum, and they probably cannot be permitted to regulate its use based on viewpoint. On the other hand, the steps of City Hall are a public forum, and we do not have to put up with a permanent display of unsuitable subject matter there.

    I guess we might turn to the classic formulation for guidance. Public records are those records made or received in the course of [entity] business.

    Apply the rule, then. Protester on steps of city hall takes his stuff and goes home. If he wrote and turned in a letter to the [entity] governing board, that's a public record to be preserved.

    If [entity] establishes a facebook page to communicate with the public, it has to preserve and make those public comments available. I am fairly sure, however, that it has the same right to stash them in a file cabinet drawer that it would have to stash an old fashioned letter in a file cabinet drawer. Either way, it is there for inspection, but the city is not obliged to post the town looney's screed on the door of city hall, nor to have his screed on its facebook wall.

    Remember, however, that (a) I am not licensed in your state (b) I am not your lawyer (c) I know nothing of the laws of your state. Accordingly you should ignore the foregoing.

  24. Roger says

    Facebook appears to have automatically generated a new Arena Police Department page, currently with an average review of 1.1 stars out of 5. When I looked, it was asking me whether several photos were appropriate profile pics for the page, including a photo of a pig taking a dump. Seems apropos.

  25. perlhaqr says

    John Fast: I believe Mr. Sherwood was engaging in black humor. :-/

    Regarding the Arena PD: Such a pusillanimous mob of lily-livered poltroons definitely qualify more for remedial kindergarten, rather than police duty.

  26. Jack Murray says

    Check out this page on the latest local arrest for violating the local LEA's online policy of no profanity, no pornography and no offending anyone;
    "Jennifer Henderson Andrews, 41, and Scott Douglas Andrews, 44, of 220 Andrews Road, were arrested by investigators with the Lowndes County Sheriff's Department last week after posting disparaging comments about Andrews' ex-wife on the couple's Facebook pages."
    This is at least the fifth arrest of local who have offended someone with rude comments on their own on social media pages.
    According to the article;
    " Cyberstalking is defined by Mississippi law as the unlawful "use in electronic mail or electronic communication any words or language threatening to inflict bodily harm to any person or to that person's child, sibling, spouse or dependent, or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person."
    Harassing texts, emails and posts on social media is considered cyberstalking under the law."