[Warning: this is an ugly ruling. A court endorses a police department’s censorship of Facebook comments in a garbled opinion that surely reflects the plaintiff’s pro se status.]
This case involves Facebook pages run by the police department for the city of Woodland Park, Colorado (part of the Colorado Springs metro area). The police department executed a search warrant that apparently generated some controversy, and they posted about it on their Facebook page. In response to the post, Sgaggio posted four comments:
- “You target sick kids to get your overtime pay.. [sic] That’s why you are a pig.”
- “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..”
- “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.”
To be clear, I’m not a fan of these comments. They are abrasive, coarse, and ad hominen, including unnecessary (but mild) profanity, name-calling (“pigs” and “terrorists”), and typos. They are also ill-informed; apparently the references to “sick kids” and overtime pay are predicated on erroneous assumptions.
Still, to me these looked like clearly Constitutionally protected comments protesting the search warrant execution and the subsequent moderation of Sgaggio’s comments. If Sgaggio had made these remarks in a traditional public forum like a street or a park, the police department could not legitimately do anything about them. (Social media comments are designated public forums, which are subject to a virtually identical legal analysis as traditional public forums). Nevertheless, the police department removed the comments pursuant to its social media policy. In a surprise, the court rejects Sgaggio’s First Amendment lawsuit.
The court starts with this statement:
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
Obscenity doesn’t receive LESS First Amendment protection; it receives NO First Amendment protection. And the determination of what’s obscene does not depend on whether children see the material. Because it’s outside the scope of the First Amendment, the term “obscenity” is narrowly defined. Sgaggio’s comments are unquestionably not “obscene” under the Miller test.
Nevertheless, the police department claimed that Sgaggio’s posts contained “obscene and indecent language” that violated its social media policy. I’m not sure what “obscene language” or “indecent language” mean exactly, but if those phrases reach Sgaggio’s comments, those restrictions should be unconstitutional. Instead, the court makes a major categorical error by equating “obscene language” and “obscenity,” which is impossible with a proper application of the Miller test. The court then reaches the further jaw-dropping result that the profanities “ass” and “bitch” constitute “obscene language.” The court says: “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.” This is obviously wrong because the police department restricted Sgaggio’s comments that did not contain the words “ass” or “bitch,” and in any case those words can’t be Constitutionally restricted (and are certainly not “obscene”).
The court then says: “Restriction of Plaintiff’s speech because of his posts in response satisfies strict scrutiny.” Really? If the content was truly obscene, strict scrutiny would not apply; restriction of material without constitutional protection only gets rational basis scrutiny. Otherwise, it’s remarkable when any government restriction survives strict scrutiny. Here’s how the court gets there:
- Compelling government interest. “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.” Cite to Sable (a 1980s dial-a-porn case. Seriously). This analysis would get a C- or worse on a student’s final exam. Children are in parks and streets, too, and yet those words (and much stronger) are permitted. Furthermore, even the FCC can’t protect children from hearing the words “ass” or “bitch.” Plus, as the Supreme Court indicated in Reno v. ACLU, broadcasting-style regulations don’t extend to the Internet.
- Narrowly tailored restrictions. “The narrowly tailored nature of the restrictions can be seen in their enforcement.” Is this a tautology? The court instead treats the social media policy as a time/place/manner restriction (without using the phrase) because Sgaggio could repost his comments elsewhere on the Internet. However, he is entitled to comment at the public forum where the government is conducting the conversation, so the availability of alternative means of communication are irrelevant to traditional public forums.
The court sums up:
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
This paragraph alone should ensure reversal. Saying that calling the police “pigs” is obscene/indecent is obviously and unambiguously wrong.
Finally, the court says:
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.
Saying that Sgaggio’s remarks are obscene goes against common sense. And Sgaggio is free to express his opinion that police are “terrorists” even if the police followed the law.
Unfortunately, the court doesn’t cite a number of related cases that generally reach a different result, such as Kimsey v. Sammamish, Tanner v. Ziegenhorn, and Cohoon v. Konrath. The Tanner case, in particular, is quite close factually, and it seems to indicate that the police department couldn’t do what it did to Sgaggio. As I pointed out in that blog post and elsewhere, (1) it’s difficult or impossible for governments to craft social media policies that are consistent with the First Amendment, (2) the resulting coarseness of the discourse ensures that government-operated online forums will universally devolve into trash, so the only way for governments to avoid the inevitable ecosystem collapse is to turn off comments entirely, and (3) thin-skinned local officials are likely to apply any social media policies in censorial ways, and their reliance on the social media policy is likely either unconstitutional or pretextual.
Note: Sgaggio also sued Colorado AG Weiser on similar grounds, and Weiser won the case because Sgaggio’s comments were made to Weiser’s personal and campaign social media pages.
Case citation: Sgaggio v. De Young, 2022 WL 279627 (D. Colo. Jan. 31, 2022)