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State v. Thomas G. Smith

COURT OF APPEALS DECISION

DATED AND FILED

July 3, 2014

Diane M. FremgenClerk of Court of Appeals

NOTICE This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. SeeWIS.STAT. § 808.10 and RULE809.62. Appeal No. 2013AP2516-CRCir. Ct. No. 2012CM192STATE OF WISCONSININ COURT OF APPEALSDISTRICT IVSTATE OF WISCONSIN,PLAINTIFF-RESPONDENT,V.THOMAS G.SMITH,DEFENDANT-APPELLANT.APPEAL from a judgmentof the circuit court for IowaCounty: WILLIAM D. DYKE, Judge. Reversed and cause remanded with directions. ¶1LUNDSTEN,J.1Thomas Smith appeals a judgmentconvicting him, after a jury trial,of disorderly conduct and unlawful use of a computerized 1This appeal is decided by one judge pursuant to WIS.STAT.§752.31(2)(f) (2011-12). All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.

No. 2013AP2516-CR2communication system. The convictions for these misdemeanor crimes were based on two comments Smith posted on a police department Facebook page. Smith argues that the circuit court should have granted his motion to dismiss because his Facebook comments were protected speech. The State argues that the comments are not protected speech because they are “fighting words.” The State does not persuademethat Smith’s comments can reasonably be construed as fighting words. And, the State’s briefing providesno other basis on which to uphold Smith’s convictions. Accordingly, I reverse and remand for the circuit court to vacate the judgment and dismiss the chargesagainst Smith. Background¶2OnJuly 20, 2012, the Village of Arena police department posted astatus update on its official Facebook page:We would like to thank the citizens … that assisted the Arena Police Department in attempting to locate two out-of-state juvenile males.The juveniles ran from a Sharon Street address after an officer attempted to make contact with them …. The same two males along with a third local juvenile male were also arrested later the same evening for burglary of a business …. Two of the males were detained by residents until law enforcement arrived, the third male was located and arrested a short time later ….¶3Within the next 24 hours, several Facebook usersposted comments onthepolice Facebook page. Some of the users appeared to have knowledgeoropinions, or both,about the underlying facts of the arrests. The comments included:Thanks for searching my house and accusing me of harboring so called dangerous fugitives … and since when is it ok for a resident to point a gun at a couple [o]f KID’S [sic] heads? If that was anyone else’s kids pretty sure it would be a big deal. Oh wait though, they were black so

No. 2013AP2516-CR3[i]t’s ok. Thanks to everyone that made our town look like nothing but a racist,prejudice[d]place to live. I’m embarrassed to say I’m part of that kind of community. If I were black I’d run too.And don’t anybody say it isn’t about race because it is when I ask the cop specifically what they look like and his response is they willstand out because they don’t belong here[.]Sooo happy I left that town.Good thing the s[c]enario didn’t go down in my hood it would have ended a lot differently … bang sheeebang[.]¶4Smith postedtwo comments, subsequentto those quoted above, which read:Fuck the fucking cops they ant shit but fucking racist basturds an fucking all of y’all who is racist[.]Fuck them nigers policy bitchs wat the you got on us not a darn thing so fuck offdicks[.]There was no allegation, and no evidence at trial, that Smith was in physical proximity to Arena police when he posted his comments. ¶5Based on Smith’scomments, the State charged Smith with disorderly conduct and with unlawful use of a computerized communication system. SeeWIS.STAT.§§947.01 and 947.0125(2)(c).2Before trial, Smith2The statutes under which Smith was convicted provide, in pertinent part:947.01Disorderly conduct.(1)Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.947.0125Unlawful use of computerized communication systems….(continued)

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