Facebook Arrest Lawsuit Settled
"The Village of Arena [Wisconsin] and three of its police officers agreed to pay $35,000 to settle the federal civil rights lawsuit brought against them for arresting our client, Thomas G. Smith, for using profanity on the Village police department’s Facebook page.
"In July 2012, Officer Nicholas Stroik of the Village of Arena Police Department posted on the Department’s Facebook page a note to the community thanking them for their help in apprehending several suspects. While some Facebook users posted comments applauding the Department’s efforts, two others suggested that race had played a role in the Department’s recent actions. One user claimed that an officer had made a racist comment to her. Smith then posted two profane comments criticizing the Police Department and racists in general.
"Upon seeing the comments, Officer Stroik deleted Smith’s profane comments as well as the other comments accusing the department of racism. Stroik did not delete the Facebook comments praising the police for its handling of the situation. Stroik then decided that Smith should be arrested and charged with two counts of disorderly conduct, two counts of unlawful use of a telephone, and two counts of unlawful use of a computerized communication system. Officer Steven Hufton arrested Smith the following evening. Chief Lonnie Drinkall, later signed a criminal complaint charging Smith with one count of disorderly conduct and one count of unlawful use of a computer system.
"I filed motions to dismiss the complaint on the ground that even strident and profane criticism of police is protected against criminal prosecution by the First Amendment. Iowa County Circuit Court Judge William Dyke denied the motions, but the Wisconsin Court of Appeals reversed that decision in July 2014. The Court of Appeals rejected the prosecution’s claim that Smith’s Facebook comments fit within the so-called “fighting words” exception to the First Amendment’s free speech protections, observing that there were no state or federal cases recognizing 'fighting words' -- speech with a propensity to precipitate immediate physical violence-- in the absence of a face-to-face confrontation.
"I filed a federal civil rights lawsuit on Smith's behalf in November 2014. Attorney Jeff Scott Olson joined the team in February 2015. While the defendants initially claimed that they were not liable because the Facebook page was not 'an officially sanctioned Facebook page,' they abandoned that claim in subsequent pleadings. The defendants also admitted that Smith was the first person they had arrested under the identified statutes for posting profane comments on the internet.
"We have always believed that the defendants’ liability was clear. Federal and state courts have routinely held that the right to free speech is not limited to polite speech alone. In our country, we are entitled to criticize our government with passion. The use of some four-letter words in the course of doing so is never a crime. We hope that the Arena Police Department, and other police departments across the state, have now learned this lesson. As for Mr. Smith, it has been more than three years since he was wrongfully arrested, and he is happy to finally have this entire episode behind him."