Calling Police Officer “Pig,” “Terrorist,” “Punk Ass,” and “Bitch” in Facebook Comments Not Obscene After All

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From Chief District Judge Philip Brimmer (D. Colo.) on March 31 in Sgaggio v. De Young, largely reversing a contrary Magistrate Judge opinion (which I blogged about here). Note that the Firearms Policy Coalition engaged me to file an amicus brief in the case, together with the FPC’s Matt Larosiere (see here for the FPC’s press release). From the Chief District Judge’s opinion:

The City’s Police Department (the “Police Department”) executed a warrant to search a residence, which residence was unrelated to plaintiff, for the unlawful possession of marijuana. On or about July 19, 2018, the Police Department posted about the execution of the warrant on its public Facebook page. That day, a Facebook user posted a video about the execution of the warrant with the caption “[d]ad tells a story of the house being raided for MMJ.” In response to the Police Post, plaintiff posted on the Police Department’s Facebook page a link to the Woodland Park Video with the caption “[y]ou target sick kids to get your overtime pay. . [sic] That’s why you are a pig.”

Plaintiff later commented, “[w]hy did you punk ass pigs remove my post. This is a pubic [sic] forum. I’m going to sue the chief of police, the city of Woodland Park, and whatever punk ass bitch remove my post. Your actions are unconstitutional and violation of federal law 18 usc 241,242. . [sic] see you pigs in Federal court. . [sic]”; posted a link to the Woodland Park Video with the caption “[y]ou target sick children to Enrich [sic] officers [yellow police officer emoji] with overtime pay. . [sic] dirty ass cops”; and commented, “Tyler Pope they violate the constitution daily. All too stupid to understand the oath they took. We the people will bring these terrorists into federal court.”

Plaintiff’s accusation that the police were targeting sick kids was in reference to the execution of the warrant. Plaintiff’s posts on the Police Department’s Facebook page violated the Police Department’s social media policy, and Chief De Young temporarily hid plaintiff’s posts from public view. Plaintiff was restricted temporarily from posting on the Police Department’s Facebook page.

Plaintiff also posted the Woodland Park Video to the City’s Facebook page with the caption “[a]sk the city how they treat sick kids.” Plaintiff’s post on the City’s Facebook page contained words that were filtered in accordance with the City’s Page Moderation Policy, and plaintiff alleges this post was removed.  Following the removal of his posts from the Facebook pages, plaintiff did not attempt to republish the posts on any other Facebook page, although he had the option to do so, or on another social media platform….

In his complaint, plaintiff asserts that defendants’ decision to remove his posts and block him from “government controlled public forums is a content-based or viewpoint-based restriction on speech, or both,” in violation of his First Amendment rights….

The magistrate judge recommends granting defendants’ motion for summary judgment because plaintiff used the “obscene” words “‘pig,’ ‘terrorist,’ ‘ass,’ and ‘bitch’ to refer to the police, and he baselessly and inaccurately accused the police of targeting sick children for personal profit.” The magistrate judge explained that the evidence indicates that plaintiff’s speech violated “policies … prohibiting the use of indecent and obscene language.” She also concluded that individuals who criticized the police with “non-obscene language” did not have their posts removed.

The court concluded (reversing the Magistrate Judge’s opinion on this point) that the speech wasn’t obscene:

Plaintiff objects to the magistrate judge’s conclusion that his speech was obscene. Docket No. 26 at 2 (“Our forefathers would piss their damn grave [sic], if they knew a Magistrate [sic] in 2021 would consider, Pig [sic], terrorist, ass, and bitch to be obscene. In 1776 none of these words were obscene.”). On de novo review, the Court agrees with plaintiff. “Obscene speech” is “sexually explicit material that violates fundamental notions of decency.” None of the words that plaintiff used in his posts were depictions of sexual conduct. Moreover, “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”  “Speech is often provocative and challenging…. [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Defendants made no argument that plaintiff’s speech produced a “clear and present danger.”

{Moreover, to the extent defendants argue in their motion that plaintiff’s speech was indecent, rather than obscene, and thereby could be removed even if it did not depict sexual conduct, defendants provide no authority on the regulation of indecent but not obscene speech, and the Court declines to address the issue.} …

The magistrate judge concluded that defendants’ restriction of plaintiff’s speech “satisfie[d] strict scrutiny” because the restriction “served a compelling government interest,” namely, “protect[ing] children from obscenity,” and was “narrowly tailored” because others’ posts were not removed…. [But r]egardless of whether protecting children from profanity or offensive language is a compelling government interest, defendants have not shown that the policy—which was not produced or excerpted in defendants’ summary judgment motion or in response to plaintiff’s objection—is narrowly tailored to serve this interest. There is no indication which words the policy would delete or flag in a comment or post or why the non-obscene words plaintiff used are barred under the policies. Moreover, the undisputed facts indicate that plaintiff’s post “[a]sk the city how they treat sick kids” was also removed, apparently pursuant to the social media policy….

And the court also disagreed with the Magistrate Judge’s conclusion that Sgaggio wasn’t protected by the Free Press Clause:

In his complaint, plaintiff asserts that defendants’ removal of his “press publications” and blocking or banning plaintiff from their Facebook pages violates plaintiff’s First Amendment free press rights.

As FPC notes, “[t]he liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets…. The press in its historical connotation comprehends every sort of publication which affords a vehicle of information and opinion.” Moreover, the Court has “consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.”  “With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.”

The magistrate judge recommends granting defendants’ summary judgment motion and dismissing plaintiff’s free press claim because “[p]laintiff did not make the Facebook posts in question as a member of the press.” The magistrate judge noted that “[p]laintiff’s only post on the City’s website repeated … inaccurate statements,” and plaintiff “lack[s] … journalistic experience and expertise,” “did not perform any type of research that a journalist would perform and the posts do not reflect an editorial process,” “did not contact any persons or organizations involved in the execution of the search warrant,” “does not know what the proper execution of a search warrant is,” and “does not have any degrees or professional certification or licensure related to journalism.” …

On de novo review, the Court rejects the recommendation because the accuracy of plaintiff’s posts is irrelevant, and First Amendment free press protection does not require journalistic experience and expertise, research, professional degrees, or licenses. As FPC notes, the Tenth Circuit has explained that “First [A]mendment protection should not depend on whether the criticism is in the form of speech by a private individual or publication by the institutional press,” and “[t]o withhold the protections of the first amendment from nonmedia participants in the political process would be to stand the amendment on its head without the slightest justification.” …

The Chief District Judge didn’t comment on the Magistrate Judge’s decision having been largely copied from the city’s briefs.

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