MADISON, Wis. (CN) - Facebook posts that a Wisconsin man says led to his arrest did not appear on a sanctioned police department page, the officer told a federal judge, denying civil rights liability.
The Wednesday reply from Officer Nicholas Stroik and the village of Arena Police comes nearly two months after Thomas Smith accused them in court of retaliatory arrest and viewpoint discrimination.
Smith claimed he was arrested after Stroik deleted off-color comments Smith had left on the police department's Facebook page.
Along with several other community members, Smith posted comments criticizing the police department's behavior in apprehending burglary suspects during a recent search. Smith and others accused the department of racism, according to the complaint.
After allegedly confirming to police that he posted the comments, Smith says he was arrested and convicted of disorderly conduct and unlawful use of a computerized communication system. Those convictions were overturned on appeal.
In reply to Smith's complaint, Arena and Stroik insist that no First Amendment violation since Facebook page Smith claims to have posted on is not an actually an officially sanctioned website.
"The basic thing is, we simply think Mr. Smith is wrong," their attorney, Stafford Rosenbaum partner Meg Vergeront, said in an interview.
Smith's lawyer Thomas Aquino insists, however, that the transcript from Smith's criminal trial does not bear out the village's assertion.
According to the transcript of his testimony, Stroik was the administrator for a Facebook page he said the department maintained, often referring to it as "our" Facebook page.
Further, according to the transcript, Stroik said he was at the police station when he discovered and deleted Smith's comments.
Vergeront maintains that the page was not officially sanctioned by the department, and deleting the comments was "private action," not police-sanctioned censorship - meaning the First Amendment does not apply.
Aquino disagrees, stating that the nature of the page does not matter because Smith was arrested and prosecuted for making a public comment.
"The identity of who is, you know administering a Facebook page doesn't make a difference if he's being punished, being arrested, for what he says," Aquino said. "I just don't understand that legal argument."
Vergeront would not comment on the arrest and prosecution, but said First Amendment issues would be addressed during the case.
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