Man convicted for cursing out police on Facebook wins $35,000 settlement

The right to free speech is not limited to polite speech alone.


Dell Cameron


Published Sep 25, 2015   Updated May 27, 2021, 10:07 pm CDT

A Wisconsin man who used profanity on a police department Facebook page has received a $35,000 settlement, ending a lawsuit against the police who arrested and charged him with criminal use of a computer.

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Thomas Smith, a Village of Arena, Wisconsin, resident, was arrested after posting “Fuck ths fucking cops,” [sic] and other profanity, including “fucking racist basturds an [sic] fucking all of y’all who is racist,” on the local police department’s Facebook page. His comments were posted in criticism of the department, whose original post he felt contained racial tones, Courthouse News Service reports.

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In July 2012, Village of Arena police announced on Facebook the arrest of “several African-Americans suspected of burglary,” who they said were apprehended at gunpoint by a local resident.

“Federal and state courts have routinely held that the right to free speech is not limited to polite speech alone. 

While many praised the department’s actions, Smith said he replied to the post—allegedly authored by Officer Nicholas Stroik—after two others were critical of the its phrasing.

“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,” according to the law firm representing Smith, Aquino Law LLC. “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.”

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The department reportedly deleted Smith’s and other negative comments before he was contacted directly by a police official, who asked if he had actually posted the comments attributed to him. “Smith told the police ‘I put it on there, I don’t regret it and I mean it,’” according to court records.

Smith was reportedly arrested later that night and charged with disorderly conduct, unlawful use of a computerized communication system, and unlawful use of a telephone. His bail conditions prohibited him from using a computer or phone unless he was trying to find a job. He was also required to hand over all of his passwords to police.

A jury found Smith guilty of unlawful use of a computerized system and disorderly conduct. He was sentenced to one year of probation, 25 hours of community service, and other penalties.

“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,” Smith’s lawyer, Tom Aquino, wrote on his law firm’s website Wednesday. A judge at the Iowa County Circuit Court denied Aquino’s motion, but the Wisconsin Court of Appeals reversed the decision in July of last year.

Smith filed a federal civil rights lawsuit against Officer Stroik and the Village of Arena Police Department in November. According to Aquino, the defendants “initially claimed that they were not liable because the Facebook page was not ‘an officially sanctioned Facebook page,’ [but] they abandoned that claim in subsequent pleadings.”

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“We have always believed that the defendants’ liability was clear,” Aquino wrote. “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.”

H/T Motherboard | Image by Fernando Alfonso III

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*First Published: Sep 25, 2015, 2:12 pm CDT