News

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

Philip Brimmer, Chief District Judge (D. Colo.), March 31, 2008. Sgaggio v. De YoungThe majority of the decision reversed a Magistrate Judge’s contrary opinion, which I wrote about here. The Firearms Policy Coalition commissioned me and Matt Larosiere from the FPC to file amicus briefs in this case (see here for FPC press release). This is the opinion of Chief District Judge:

Police Department of the City executed a warrant for search to search a house, unrelated to plaintiff. The residence was searched for illegal possession of marijuana. The execution of the warrant was posted by the Police Department on their public Facebook page, around July 19, 2018. A Facebook user uploaded a video that day about execution of warrant and captioned it “[d]The ad tells the story of the raid on the house for MMJ. Plaintiff posted a response to Police Post and a link to Woodland Park Video on Police Department’s Facebook Page with the caption: “[y]You can target sick children to earn overtime. . [sic]This is why you’re a pig.

Plaintiff commented later, “[w]How did you make my punk-ass pigs delete it? This is a publicic [sic] forum. I will sue Woodland Park’s chief of police and any other punk who removed my post. Your actions are illegal and in violation of federal law 18usc 241,242. [sic]See you in Federal Court, pigs. . [sic]”; added a link the Woodland Park Video under the caption “[y]ou target sick children to Enrich [sic]Officers [yellow police officer emoji]With overtime pay. . [sic]Dirty cops.” He commented that Tyler Pope said they were “dirty ass cops” and that they are in violation of the Constitution every day. Too stupid to grasp the oath taken. These terrorists will be brought before the federal courts by us, the people.

Plaintiff’s claim that the police targeted sick children was in relation to the execution warrant. Plaintiff’s post on Police Department’s Facebook page was in breach of Police Department’s policy. Chief De Young temporary blocked Plaintiff from seeing the posts. Temporarily, Plaintiff was prohibited from posting to the Police Department’s page on Facebook.

Plaintiff posted Woodland Park Video to City’s Facebook Page with caption: “[a]Ask the City how they treat children with a medical condition. Plaintiff claimed that the post he posted on the City’s Facebook page included words that had been filtered according to the City’s Page Moderation Policy. The post was then 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….

A magistrate judge has recommended that the defendants’ motion to summary judgement be granted. Plaintiff used the obscene words “pig, terrorist, assassin, and “bitch” to refer to police. Additionally, he incorrectly claimed that the police targeted sick children to profit. The magistrate judge explained that the evidence indicates that plaintiff’s speech violated “policies … prohibiting the use of indecent and obscene language.” The magistrate judge also stated that those who criticized the police using “nonobscene language”, were not removed from their positions.

Reversing the decision of the Magistrate Judge on the point, the court decided that the speech was not obscene.

The magistrate judge’s decision that Plaintiff’s speech was inappropriate is objected to by plaintiff Docket Number. 26 at 2. (“Our forefathers would excuse their damn graves. [sic]If they were acquainted with a Magistrate [sic]The 2021 year would see Pig [sic]Terrorist, bitch, and ass to be considered obscene. None of the above words were considered obscene .”). in 1776. The Court agreed with the plaintiff after de novo reviews. The Court agrees with plaintiff on de novo review. Obscene speech refers to sexually explicit material, which is in violation of fundamental principles of decency. All of the language used by plaintiff in his postings was not intended to depict sexual conduct. The First Amendment allows for significant verbal and written criticism directed at officers.  “Speech is often provocative and challenging…. [But it]It is still protected from punishment or censorship if it produces a clear, present risk of serious substantive harm that goes beyond public discomfort, annoyance, and unrest. Plaintiff’s speech did not present a clear and immediate danger, as defendants failed to make that argument.

{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.} …

Judge Magistrate concluded that plaintiffs’ speech restriction by defendants was “satisfactory.”[d]Due to the fact that “strict scrutiny” was required, it “served an imperative government interest,” specifically “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. The policies do not specify which language the policy would flag, delete, or block in any comment or post. It also does not explain why plaintiff’s non-obscene comments are forbidden. The undisputed fact is that plaintiff wrote “[a]sk the city how they treat sick kids” was also removed, apparently pursuant to the social media policy….

The Magistrate Judge also concluded that Sgaggio didn’t have the protection of the Free Press Clause.

Plaintiff claims that the defendants removed his press publications and blocked or banned plaintiff from their Facebook pages in violation of plaintiff’s First Amendment rights to free speech.

FPC points out that “[t]The press freedom isn’t limited to periodicals and newspapers. It necessarily embraces pamphlets and leaflets…. In its historic connotation, the press includes all publications that provide information or opinion. The Court also “consistently refuted the notion that institutional presses have any constitutional privilege beyond those of other speakers.”  With the rise of the Internet, decline in print and broadcast media, it is becoming more difficult to distinguish between media outlets and those who want to discuss political or social issues.

According to the magistrate judge, defendants should be granted summary judgment and plaintiffs can dismiss their free press claim.[p]”Laintiff didn’t make the posts on Facebook as a member or the media.” Judge Laintiff 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.” …

De novo review shows that the Court rejected the recommendation. First Amendment free press protection is not dependent on journalistic experience, expertise, research or licensures. FPC noted that the Tenth Circuit had explained that First Amendment protection does not require professional degrees or licenses. [A]The form of criticism expressed by an individual or published by institutions should not affect mendment protection.”[t]To withhold protections for the first amendment from participants non-media in the political proces would be to put the amendment on its own head, without any justification. …

The Chief District Judge did not comment on whether the decision of the Magistrate judge was largely copied from city briefs.