The Volokh Conspiracy
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Magistrate Judge: Calling Police Officer "Pig," "Terrorist," "Punk Ass," and "Bitch" in Facebook Comments Is Obscene …
and unprotected by the First Amendment. An incorrect decision, it seems to me.
[UPDATE: It turns out that the First Amendment analysis in the report and recommendation was borrowed almost word-for-word from the defendants' briefs.]
In Sgaggio v. De Young (D. Colo.), decided yesterday, plaintiff had posted on the Woodland Park Police Department page (in response to a story about a search of someone else's home for marijuana),
You target sick kids to get your overtime pay..[sic] That's why you are a pig….
You target sick children to Enrich [sic] officers [yellow police officer emoji] with overtime pay..[sic] dirty ass cops.
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.
When one of the posts was removed, he posted,
Why 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..
Plaintiff sued, claiming the removal of his posts violated the First Amendment, but the Magistrate Judge's Report and Recommendation (to the District Judge) disagreed:
Obscenity is one of a few categories of speech that is per se afforded less protection under the First Amendment, especially when it is accessible by children. Bethel Sch. Dist. v. Fraser (1986). This is so because "implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance." Roth v. United States (1957)….
Plaintiff used the 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 evidence indicates there were policies in place prohibiting the use of indecent and obscene language and that Plaintiff's speech violated such policies.
There is no genuine dispute of material fact that two other individuals who also responded on the Police Department's page with criticism of the warrant's execution that were articulated with non-obscene language and, thus, not in violation of policy and did not have their posts removed. 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….
The Supreme Court's opinion in R.A.V. v. St. Paul (1992) explains the lower level of protection afforded to obscenity. Justice Scalia, writing for the majority, explained that "[f]rom 1791 to the present, [ ] our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas, which are 'of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.'" Obscenity is one of those few limited areas whose restriction is subject to a limited categorical approach. Proscription of obscenity as content discrimination is different than content discrimination of non-obscene language because it often does not threaten censorship of certain ideas or viewpoints. "When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists."
The restrictions of Plaintiff's speech are constitutional because they restricted obscenity. As discussed above, obscenity may be proscribed because it is obscene or obscene when it comes to the sensibility of a child. Plaintiff's use of the words "ass" and "bitch" and calling the police "pigs" and "terrorists" for their alleged targeting of sick children were considered obscene and indecent under the social media policies in place and as generally understood in polite civil discourse.
Plaintiff's argument that these words are not obscene or indecent goes against common sense. "Punk ass bitch" is not a literary turn of phrase. Moreover, it is inaccurate to refer to the police as "terrorists," when there is no dispute that the execution of the search warrant was lawful.
Moreover, Plaintiff cites legal authority that no longer applies or is not analogous to the facts of this case. As set forth above, the Court's review of protections afforded to obscenity in R.A.V. v. St. Paul, which distinguishes past Supreme Court jurisprudence on obscenity, including the Miller v. California (1973) decision cited by Plaintiff. In Cohen v. California (1971), the U.S. Supreme Court held that California could not criminalize wearing a jacket with the words "Fuck the Draft" on it in a courthouse. The fleeting nature of this speech, its use in a traditional public forum, and exposure to criminal penalty are not analogous with Plaintiff's posting of obscenity on a public Facebook page and its temporary removal from the page. Likewise, Plaintiff's other proffered legal authority concerns the imposition of criminal penalty for speech directed at police in person. Here, Plaintiff was not subject to any criminal penalty other than the temporary removal of his speech.
Plaintiff's obscene speech is exempted from First Amendment protections….
The Report and Recommendation also concluded that,
Restriction of Plaintiff's speech because of his posts in response satisfies strict scrutiny. First, this restriction served a compelling government interest. The Facebook pages contain stories that are of interest to their community. The intended audience of these posts is the community, including children. Anyone on Facebook may read these pages and the comments thereon, including children. As such, the Police Department and the City had a compelling interest in regulating and preventing anyone from using indecent and/or obscene language visible to the community, including children. Sable Communications of Cal. v. FCC (1989) (holding there is a compelling interest to protect children from obscenity and "from the influence of literature that is not obscene by adult standards").
The narrowly tailored nature of the restrictions can be seen in their enforcement. Plaintiff's posts containing obscene and indecent language were restricted. Other posts expressing the same viewpoint of Plaintiff that did not contain offensive and indecent language were not restricted. Thus, the restrictions did not target viewpoints with which the government may disagree and were narrowly tailored to ferret out only obscene and indecent language.
Finally, these restrictions left open a myriad of other communication channels in which Plaintiff could express his criticism of the police. Not only could he have posted on his own Facebook page and other nonCity/Department operated Facebook page, he could have communicated on any number of ever expanding social media platforms. Plaintiff testified that he has social media accounts on Youtube, Instagram, and Parler, but failed to use them. Further, Plaintiff could have voiced his criticism via traditional media or pamphleting….
The Report and Recommendation also rejected plaintiff's Free Press Clause claim:
The press is afforded protection from government suppression under the First Amendment. This protection was adopted "to preclude the national government, and by the Fourteenth Amendment to preclude the states, from adopting any form of previous restraint upon printed publications, or their circulation." As used in the First Amendment, the word "press" included "independent printers who circulated small newspapers or published writers' pamphlets for a fee." McIntyre v. Ohio Elections Comm'n (1995)….
The undisputed facts show that Plaintiff did not make the Facebook posts in question as a member of the press. Plaintiff's initial post on the Police Department's Facebook page criticized the search warrant's execution because the officers were allegedly "target[ing] to get [their] overtime pay" and reposted a video posted by another Facebook user. His successive posts state a similar opinions along with obscenity and threats about his posts being removed. Likewise, Plaintiff's only post on the City's website repeated some of the same inaccurate statements.
Plaintiff's posts are not journalism, and Plaintiff is not a journalist for posting them. Plaintiff made these posts via his own private Facebook account. He did not perform any type of research that a journalist would perform and the posts do not reflect an editorial process.
He was not present at the execution of the search warrant. He did not contact any persons or organizations involved in the execution of the search warrant. He does not know what the proper execution of a search warrant is. He did not have a copy of the search warrant or affidavit used in this instance. He did not have any records indicating that the officers executing the search warrant were entitled to overtime pay. He did not know whether the officers knew there was a sick child at the home. He also did not choose to comment on the search warrant's execution on a different Facebook page or via any other media in which he had accounts.
Plaintiff's lack of journalistic experience and expertise is also reflected in his employment background. He runs a construction research and design company, the Sinsemillas House of Worship, and a non-profit organization. Plaintiff only earns income from [marijuana] dispensaries. He has never received compensation for journalism and has not sustained any monetary lost because of the posts. Moreover, he does not have any degrees or professional certification or licensure related to journalism.
Plaintiff cannot call himself a member of the press merely because he commented, without any personal knowledge, research or editorial process, about law enforcement on Facebook. Such a conclusion would nullify the meaning of the word "press" and the constitutional protection afforded to it….
My thoughts:
[1.] None of this is "obscenity." "Whatever else may be necessary to give rise to the States' broader power to prohibit obscene expression, such expression must be, in some significant way, erotic." The Court held that in Cohen v. California (1971) (as to Cohen's "Fuck the Draft" jacket), and that remains true today; nothing in R.A.V. changed that, or the holding of Miller v. California (1973) to much the same effect.
[2.] The potential presence of children reading the Police Department page doesn't change this analysis. Indeed, in Erznoznik v. City of Jacksonville (1975), the Court struck down (under strict scrutiny) an ordinance barring drive-ins from displaying films that contain nudity. The city argued that it had a compelling interest in shielding children, but the court rejected that. Indeed, it applied the Cohen reasoning that obscenity even as to minors "must be, in some significant way, erotic," and added that, "In most circumstances, the values protected by the First Amendment are no less applicable when government seeks to control the flow of information to minors." And I suspect that there were more minors riding in cars or walking on city streets near drive-in theaters than there are minors reading the city police department Facebook page.
FCC v. Pacifica Foundation (1977) did uphold restrictions on nonerotic use of "indecent" vulgarities (defined as references to "sexual and excretory activities and organs") on over-the-air broadcast radio and television, partly because of the presence of minors. But Reno v. ACLU (1997) made clear that this doesn't apply to other media, such as the Internet. And in any event, such vulgarities aren't covered by the "obscenity" doctrine, and there's no reason to think that "terrorist" or "pig" (or even "ass" or "bitch") would fit within that indecency category, even if it applied beyond over-the-air radio and television. (The vulgarities viewed as indecent in Pacifica were "shit, piss, fuck, cunt, cocksucker, mother-fucker, 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. The Free Press Clause shields all who use mass communications technology to speak to the public, and not just professional journalists (see this article for more). As the Supreme Court has recognized, "The press in its historical connotation comprehends every sort of publication which affords a vehicle of information and opinion," including solo leafleters, regardless of whether those leafleters had any journalistic temperament or credentials.
[4.] Now actually a city might have some authority to restrict material on its web page, but on a theory that the Report and Recommendation didn't even mention: the "limited public forum" doctrine. It may well be that the comment section on a city-run web page is a "limited public forum" in which reasonable viewpoint-neutral restrictions (enforced merely through removal of offending posts) are permitted. And a clear and narrow restriction on vulgarities, such as "fuck," might be constitutional (see this post for more on that).
But a restriction on calling the police "terrorists" or "pigs" isn't viewpoint-neutral; those terms are insulting, but they are insulting precisely because of the viewpoint they convey. "Terrorist" in this context conveys the opinion that the person being criticized is acting in morally reprehensible ways. (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.) "Pig" conveys the viewpoint that police officers deserve contempt.
A restriction on "ass" might be viewpoint-neutral, though I'm not sure that it would be reasonable, given that "ass" is just being used as an intensifier here ("punk ass" and "dirty ass" don't really refer to butts, or for that matter to donkeys). A restriction on "bitch" might be viewpoint-neutral, too, though that's a complicated question.
But in any event, the opinion doesn't get into this in detail, because it doesn't recognize that the limited public forum doctrine would be the relevant rule. And again, there's no reason to think that the prohibition of "terrorist" and "pig" here were viewpoint-neutral.
The plaintiff, who is representing himself, may file objections to the report and recommendations; I hope he does.
