Sgaggio v. De Young Yesterday, the District Court of Colorado ruled that plaintiff posted to Woodland Park Police Department’s page in response to a report about a home search for pot.
To get overtime, you should target sick children.[sic] That’s why you are a pig….
You target sick children to Enrich [sic]For officers [yellow police officer emoji]With overtime pay.[sic]Cops with dirty hands.
Tyler Pope They violate the Constitution daily. They are too ignorant to comprehend the oath that they have taken. We, the People will take these terrorists to federal court.
He posted again after one of his posts was deleted.
You punk ass pigs, why did you remove my post. This is not a publicic [sic] forum. I will sue Woodland Park’s chief of police and any other punk who removed my post. Your actions violate federal law 18 USC 241,242.[sic]You pigs are in Federal court.
Plaintiff filed suit, alleging that the removal of his posts was in violation of the First Amendment. However, the Magistrate Judge’s Report and Recommendation (to District Judge) did not agree with Plaintiff:
The First Amendment gives less protection to obscenity than other speech types, particularly when it is easily accessible for children. Bethel Sch. Dist. v. Fraser (1986). Because “implicit” in the First Amendment’s history is the reject of obscenity that is utterly and without redeeming social significance. Roth v. United States (1957)….
The Plaintiff used words like “pig”, “terrorist”, “ass,” or “bitch” in reference to police officers. He incorrectly and baselessly accused them of targeting children with sick conditions for their own profit. Evidence shows that there are policies prohibiting indecent and obscene language, and Plaintiff’s speech is in contravention of such policies.
It is not undisputed that there were two others who posted comments on the Police Department page criticizing the execution of the warrant. These posts, which were written in non-obscene language, did not violate policy. Thus, the evidence clearly establishes that the restrictions occurred solely because of Plaintiff’s indecent and obscenity language, not because Defendant De Young or the City were trying to censor Plaintiff’s posts about the warrant….
In the opinion of The Supreme Court R.A.V. v. St. Paul(1992) describes the lower protection given to obscenity. Justice Scalia wrote for the majority and explained, “[f]The timeline from 1791 through the present. [ ]Like other civilized and free societies, our society allows speech restriction in certain limited areas. These are “of such little social value as an attempt to tell the truth that any benefit they may bring is clear outweighed by the public interest in order or morality.” One of the few areas where restrictions are allowed is obscenity. Because obscenity is not a content discrimination, it’s different from content discrimination for non-obscene languages. It often doesn’t threaten the censorship or suppression of ideas and viewpoints. No significant risk exists of ideas or viewpoint discrimination if the sole basis of content discrimination is the exact reason that the whole class at issue of speech is prohibited.
Because they restrict obscenity, the speech restrictions placed on Plaintiff are Constitutional. As we have discussed, obscenity can be banned because it may offend or offend children’s sensibilities. The use of obscenity by Plaintiff, including the words “ass”, and “bitch,” and the alleged calling of police officers “pigs”, and “terrorists”, for the alleged targeting children with sick eyes was criminalized under social media policies. This is as polite civil discourse generally deems it.
Plaintiff’s claim that these words were not indecent or obscene is absurd. The phrase “punk ass butch” does not refer to a literary term. It is also incorrect to call the police “terrorists” when it is clear that they were lawfully executed.
Plaintiff also refers to legal authority which is no longer applicable or not comparable to the facts in this case. The Court reviewed obscenity protections as set out above. R.A.V. v. St. PaulThis distinction distinguishes the past Supreme Court Obscenity Jurisprudence, as well as other Supreme Court cases on obscenity. Miller v. CaliforniaPlaintiff cites (1973) the decision. In Cohen v. California In 1971, the U.S. Supreme Court ruled California could not make it a crime to wear a jacket that has the words “Fuck the Draft”, on it at a courthouse. This speech’s short-term nature, use in traditional public forums, and potential exposure to criminal penalties are all different from Plaintiff’s obscenity posting on a Facebook page, then its temporary removal. Plaintiff claims that he has other legal authority to impose a criminal penalty on speech directed towards police personnel. This case, however, did not involve any criminal punishment other than the temporary revocation of Plaintiff’s speech.
Plaintiff’s obscene speech is exempted from First Amendment protections….
Report and Recommendation found that
The strict scrutiny of the restriction of Plaintiff’s speech due to his replies is satisfied. The first was that the restriction was in the public interest. Stories that interest their communities are posted to Facebook. This post is intended to reach the whole community including children. These pages can be viewed by anyone on Facebook, even children. Therefore, both the Police Department (and the City) had an interest in stopping anyone using offensive or indecent language, even children, in the city. Sable Communications, Cal. v. FCC(1989). (holding children are protected from obscenity” and “from the influences of literature that does not conform to adult standards.”
Their enforcement reveals the narrowly tailored nature and restrictions. Plaintiff had to restrict posts that contain obscene or indecent language. Posts that were similar to Plaintiff’s viewpoint but didn’t contain indecent or offensive language weren’t restricted. The restrictions were not intended to restrict viewpoints that the government might disagree with and they were only meant to be used for indecent and obscene language.
These restrictions also left Plaintiff with a multitude of communication options through which he could criticize the police. He could not only have written on his Facebook page but also on other pages that were not operated by the City/Department, but he could also have used any of the many social media platforms available to him. Plaintiff claimed that he is a member of Instagram, Youtube, and Parler but has not used them. Further, Plaintiff could have voiced his criticism via traditional media or pamphleting….
Recommendation and Report also disapproved plaintiff’s Free Press Clause claim.
First Amendment protections the press from government suppression are available. The protection was created “to prevent the national government” and the Fourteenth Amendment, to prohibit the states from imposing any previous restriction on printed publications or their circulation. The First Amendment defined “press” as “independent printers that circulated small newspapers for a fee or printed writers’ pamphlets.” McIntyre v. Ohio Elections Comm’n (1995)….
It is clear that Plaintiff was not a member the media when he made the Facebook comments in question. Plaintiff wrote an original post to the Police Department Facebook page in which he criticised the execution of the search warrant, claiming that the officers had been “targeted”.[ing]Get [their]”Overtime pay” was reposted by another Facebook user. He posted several similar comments, along with threats and obscenity about having his posts removed. Plaintiff also repeated the incorrect statements in his only posting to the City website.
Plaintiff’s posts don’t constitute journalism. Plaintiff also isn’t a journalist because he posted them. These posts were made by Plaintiff via his private Facebook account. The posts are not the result of an editorial process. He didn’t conduct any kind of research as a journalist would.
He was absent at execution of search warrant. He didn’t contact anyone involved in the execution or the preparation of the search warrant. He is not aware of the procedure for executing a search warrant. The search warrant and affidavit were not available to him. The records did not indicate that overtime paid was due to officers who were executing the search warrant. It was not clear whether officers had known there was an infant at the residence. He didn’t choose to make comments on the execution search warrant via a different Facebook account or through any other media.
Plaintiff lacks journalistic expertise and experience. His company is a design and construction firm, Sinsemillas House of Worship. He also runs a non-profit organisation. The Plaintiff earns his income only from the construction industry. [marijuana] dispensaries. He has not been compensated for journalism or suffered any loss of money as a result. He does not hold any journalism-related degrees, professional licensure or certifications.
The fact that Plaintiff commented on Facebook law enforcement is not enough to make him a member or the press. Such a conclusion would nullify the meaning of the word “press” and the constitutional protection afforded to it….
These are my thoughts
[1.]This is not obscenity. “Whatever other means may be required to grant the States a greater power to prevent obscene expression, it must be in a significant manner erotic.” In accordance with the Court’s decision, Cohen v. California (1971) (as Cohen’s “Fuck the Draft” jacket). That is true even today. R.A.V. Changed that or the holding Miller v. California (1973), to much the exact same effect.
[2.]This analysis doesn’t alter the fact that children could be reading this page. In fact, City of Jacksonville against Erznoznik Under strict scrutiny, the Court invalidated an ordinance that prohibited drive-ins showing films that contained nudity. However, while the city claimed it was interested in safeguarding children’s rights, the Court rejected that argument. The court did indeed apply it. Cohen Obscenity as it pertains to minors is not acceptable. He also stated that “in most circumstances, the First Amendment values protect minors” and that government can still control information flow to minors. What I believe is that the number of minors who walked or rode in vehicles on roads near theaters was greater than those reading the police department’s Facebook page.
FCC v. Pacifica Foundation Because of minors, (1977) maintained restrictions on the nonerotic and inappropriate use of “indecent” vulgarities. But Reno v. ACLU This doesn’t extend to any other media such as the Internet, according to (1997). In any case, these vulgarities are not covered under the “obscenity” doctrine. There’s no reason for anyone to assume that “terrorist”/”pig” (or “ass”, or “bitch”) could fall within this indecency category even though it was applicable beyond television and over-the-air radio. (Vulgarities considered indecent are Pacifica (“Shit, pissy, fuck and cunt of cocksuckers, mothers-fuckers, and tits.”)
[3.] The Free Press Clause indeed doesn’t give any extra protection here beyond that offered by the Free Speech Clause—but not because Sgaggio is somehow not a professional journalist. For more information, see this article. The Free Press Clause protects anyone who uses mass communications technology to communicate with the public. The Supreme Court recognized that “the press, in its historical context, encompasses all kinds of publications which provide a vehicle for information and opinion”, including single leafleters. This is regardless of their journalistic credentials or temperament.
[4.]A city may have the authority to limit material on its website, however the Report and Recommendation did not mention the “limited forum” doctrine. The possibility exists that a comment section of a city-run website is considered a “limited publicly available forum”, in which moderate viewpoint-neutral restrictions can be enforced by removing offending posts. A clear, narrow and strict restriction on vulgarities such as “fuck” might also be possible (see the post).
However, a prohibition on calling police officers “terrorists”, or “pigs” doesn’t make them neutral in their viewpoint. Those terms can be insulting but are offensive precisely because they reflect the view they represent. The use of the term “terrorist”, in this context, implies that critics believe the accused is engaging in morally unacceptable behavior. (The Report and Recommendation says “it is inaccurate to refer to the police as ‘terrorists,’ when there is no dispute that the execution of the search warrant was lawful”; but of course this isn’t a matter of factual accuracy—”terrorist” isn’t being used literally—but of moral judgment.) The term “Pig”, which refers to the view that police officers are deserving of contempt, is used.
Though a ban on ass might seem to be neutral in viewpoint, it is not unreasonable to restrict ass because “ass”, which I use as an intensifier, doesn’t actually refer to ass. Though it’s difficult to say, a restriction on “bitch”, might also be neutral.
The opinion isn’t going to go into details because it does not recognize that the public forum doctrine will be applicable. Again, it’s not possible to assume that prohibition of terrorist and pig here was viewpoint neutral.
If the plaintiff is not representing himself, he may object to the recommendations and report. I would like him to do so.