Do Certain Facebook Posts Count as Disorderly Conduct? – State v. Smith

By Reddin & Singer


Every state has its own disorderly conduct laws. Disorderly conduct is a criminal charge in most states in the United States. Under a Wisconsin statute, an individual engages in disorderly conduct when he or she behaves in a violent, abusive, indecent, or unreasonably loud manner that tends to disturb others. Disorderly conduct is classified as a Class B misdemeanor, which is the lowest level of criminal behavior one can be charged with in Wisconsin. Consequently, disorderly conduct is one of the most commonly charged offenses in the state.

In State v. Smith, the court addressed the issue of whether profane comments made on Facebook can constitute disorderly conduct. The facts of the case are as follows. The police department had posted updates regarding its police work on its Facebook page. Many users responded in a variety of ways. Smith posted a profane comment cursing at the police officers and accusing them of being racist. At the time the comments were posted, Smith was not in physical proximity of the Wisconsin police officers.

Smith was officially charged with disorderly conduct and unlawful use of a computerized communications system. Prosecutors argued that Smith used profane and vile language on a post that stated that two black juveniles had been apprehended in the area for an unrelated crime. Surprisingly, the lower court convicted Smith of the misdemeanor offenses.

Smith appealed. The issue was whether Smith’s words constituted “fighting words” outside the Constitutional protections of the First Amendment. The state admitted that the majority of cases since Chaplinsky v. New State of New Hamshire had not found words to be “fighting words” when the speaker was not in close proximity to the listener. In Chaplinsky, the fighting words that were uttered posed a threat of causing an “immediate breach of the peace.” Here, Smith’s words did no such thing. Thus, the Court of Appeals concluded that Smith’s comments could not be considered “fighting words” and reversed and remanded the lower court decision with directions to vacate the judgment of conviction and dismiss the charges against Smith.

It is important to note that the court did not say that online communication can never constitute “fighting words,” but rather that the online communication must be examined in its overall context. This includes a clear and specific indication of whom the comment would have incited.

If you are facing criminal charges, having a qualified attorney on your side can make all the difference in your case. At Reddin & Singer, our skilled Milwaukee criminal defense attorneys can help you understand the implications of the charges against you. We handle disorderly cases often and are well-versed in this area of law. We will examine the facts of your case and discuss your legal rights and options with you. If you are unsure about your next steps, you will be glad to know we offer free, no-obligation consultations to each prospective client. To learn more, contact us online or call us at (414) 271-6400.