"Punk-Ass Bitch:" Another Colorado Town Pays Big for Freaking Out Over Profanity

Just days after the City and County of Denver agreed to pay $128,000 to resolve a lawsuit over two arrests inspired by variations on the word "fuck," news broke about another Colorado municipality, Woodland Park, ponying up a $65,000 settlement to plaintiff Delbert Sgaggio after a law enforcement official freaked out over profanities.

Granted, the terms used in a pair of comments left on the Woodland Park Police Department's Facebook page back in 2018 generally steered clear of the letter "F." Attorney Andrew McNulty of Denver-based Killmer, Lane & Newman LLP, who represents Sgaggio, points out that one key phrase was "punk-ass bitch."

That description was aimed at whoever deleted Sgaggio's posts. McNulty says that person turned out to be then-Woodland Park Police Chief Miles DeYoung, who retired last year following an investigation that found gender bias and harassment within his department — and he's still costing the community money.

Sgaggio self-filed a lawsuit against DeYoung and Woodland Park in July 2020 over the deletions of his criticisms about "a police raid instituted on a family with a young, disabled child," McNulty explains. "The first one was a video report about the problems with that raid, which the police chief deleted. In the second one, Delbert had some choice words about the department, and the chief deleted those as well."

In doing so, DeYoung was following "the city's Facebook policy, which required the removal of all profanity," McNulty notes. "But the judge in the case found that to be unconstitutional because, as the public should know, profanities are protected under the First Amendment just like every other word."

McNulty adds: "It's astonishing how often profanity triggers these, frankly, snowflake law enforcers into violating the constitution. The chief of police personally removed these comments, and if you have a chief of police who is so undisciplined, so unaware of constitutional protections and so triggered by profanities, I don't think the rest of the department has the best temperament to be law enforcement officers."

The settlement, which McNulty believes is the largest ever in a case involving Facebook blocking by a public official, goes beyond the money. "Woodland Park had to change its policy to allow for profanity to be posted on its pages, just like every other word. And they also took away discretion from the chief of police and others who operate the page to remove comments willy-nilly whenever they felt they were inappropriate."

That doesn't mean anything goes, however. "Obviously some comments can be deleted, because there are certain categories of speech that aren't protected," McNulty acknowledges. "Examples are certain threats and also obscenity, which is different from profanities. Obscenity is the description of sexual acts — things that are more like pornography on some level — whereas profanity is just vulgar words, or what you would normally think of as cursing."

Of course, communities such as Woodland Park can simply turn off the commenting function on their Facebook pages. According to McNulty, such a move wouldn't violate the First Amendment, "but if you open a forum for free speech, you have to allow it in a way that doesn't stop people from commenting or lets you delete comments just because you don't like them. Communities need to let these modern-day town halls operate the way they're supposed to — the way the Founding Fathers would have wanted them to."

Some observers "might see this case as trivial," McNulty concedes. "But I don't think anyone should see internet censorship as a trivial issue. If our government doesn't protect free-speech rights in our country, we'll turn into Russia or China, where the government controls the discourse online and it looks like everyone supports the government, which is clearly not true. Without the First Amendment and people like Delbert willing to stand up for their rights online, we run the risk of turning into these totalitarian governments."

Leaders of other communities should learn from Woodland Park's errors, too, McNulty suggests: "Every municipality needs to respect the First Amendment and allow folks to freely discuss public affairs no matter the vulgarity of their language or criticism of the institutions on their Facebook pages — and if they don't, they'll have to pay for it. If I was a taxpayer in Woodland Park, I'd be pretty upset that my former chief of police just cost my city $65,000."

Westword has reached out to Woodland Park for comment about the case. Click to read Delbert Sgaggio v. Miles DeYoung, et al., and the settlement agreement, which was signed on August 3.