THOSE AREN’T FIGHTING WORDS IN WISCONSIN

An analysis of "fighting words" makes the headlines today, with the Wisconsin Court of Appeals overturning a disorderly conduct conviction resulting from the defendant's profanity-laced Facebook post about the police in the Village of Arena, Iowa County, Wisconsin. Fighting words, first defined by the U.S. Supreme Court in Chaplinsky v. New Hampshire (1947), is a category of speech not entitled to 1st Amendment protection because such words by their very utterance tend to incite an immediate breach of peace. The key distinction that our Court of Appeals made in its analysis is that Chaplinsky's profanity-laced tirade was a face-to-face encounter, while Smith's online comments could not, according to the court, be viewed as tending to incite an immediate breach of peace. The 1st Amendment discussion comes into the internet age – a very interesting read. The short opinion can be found here. The Milwaukee Journal Sentinel's story:

Village pays $35,000 to man wrongly convicted for anti-police Facebook comments

By Bruce Vielmetti of the Journal Sentinel Sept. 24, 2015 8:00 a.m.

After posting profane comments about Arena police on the department's own Facebook page in 2012, Thomas Smith was charged with disorderly conduct, convicted and sentenced to prison.

First, the Court of Appeals last year vacated his convictions on those charges, and now the tiny village (population 834) has agreed to pay $35,000 to settle Smith's subsequent civil rights lawsuit.

"In our country, we are entitled to criticize our government with passion," Smith's attorney said in a statement. "The use of some four-letter words in the course of doing so is never a crime."

Courthouse News Service has the story.

Smith initially tried to get the charges dismissed, arguing that his comments were protected free speech. A trial judge denied his motion, accepting the state's characterization that Smith's comments were unprotected "fighting words."

The Court of Appeals said Smith's comments were too vague to qualify as fighting words.


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