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Ugly posts on Facebook aimed at Lackawanna Police raise First Amendment questions

When Voltaire suggested that free speech can be ugly speech, the 18th-century writer and philosopher could have been talking about Scott Boyler and his campaign to embarrass the Lackawanna police.

Boyler is a Town of Evans resident who, for nearly two years, has posted a Facebook page and website called “Lackawanna police corruption.”

Needless to say, this has not gone over well with the cops. They went so far as to arrest and charge him with posting “annoying and alarming comments” about them.

Boyler says his now very public fight with the Lackawanna police – he recently filed a federal court lawsuit against the city – is all about free speech and social media.

The police say it’s really about the offensive and threatening nature of what Boyler puts on his website and Facebook page.

It’s also no secret Boyler is a Level 1 registered sex offender.

Boyler may not be the free-speech champion most people envision, but his lawsuit, as well as the allegations and language it attempts to protect, provide a glimpse into a cutting-edge legal issue – what you can and can’t say on social media.

“The only speech that needs to be protected is unpopular speech,” says James Ostrowski, Boyler’s lawyer. “If the courts criminalize this type of speech, there goes the First Amendment.”

On his website, Boyler uses words like “pigface” and “pig gang” to describe the Lackawanna police. In one post, he suggests that a “known sociopath, compulsive liar and kleptomaniac” is on the force and making false arrests, filing false charges and violating people’s civil rights.

And he doesn’t limit his anger to the local police. He constantly refers to Lackawanna City Hall as Parasite Hall and to Mayor Geoffrey M. Szyzmanski as Mayor Sleazmanski.

The sites also detail his numerous run-ins with police, including his most recent arrest for aggravated harassment, the charge he faced after starting his Facebook page and website. The charge was eventually dismissed, but only after Boyler spent several days in the Erie County Holding Center.

“It’s pure political speech that led to his arrest,” Ostrowski said. “This goes back to colonial days when people got arrested for criticizing the king.”

Lackawanna Police Chief James L. Michel and City Attorney Antonio M. Savaglio said they would like to respond to Boyler’s allegations but his lawsuit – he’s seeking $1.25 million in damages – makes it impossible for them to comment at this time.

“We don’t believe the allegations,” Savaglio said. “And we believe that over time, we’ll be fully vindicated.”

The original complaint against Boyler does, however, provide some detail into why police charged him criminally.

Filed by Capt. Joseph Leo, the complaint notes that Leo’s photo is on the website and Facebook page and that Boyler’s comments about the officer are alarming. The complaint also includes two posts, filled with vulgar language, that the police view as threatening and harassing.

Over the years, the courts have found that certain types of speech are not protected. Speech that incites violence can be prohibited. So can speech that advocates illegal activity or speech that is obscene or is false and defames.

To hear Ostrowski talk, Boyler’s speech is none of those.

His client’s lawsuit accuses the police of false arrest, malicious prosecution and assault. But it’s the free speech allegations that bring to mind one of the trendier and evolving aspects of the law: What can you say on Facebook, Twitter and Instagram?

Boyler argues in his suit that the content of his website and Facebook page is “clearly established constitutional” speech, and that his arrest last year was in retaliation for that speech.

“Public officials see themselves vested with power, and very often they don’t like to be challenged,” said Ostrowski. “And when they are, they tend to retaliate. This is why we have to protect free speech.”

Ostrowski said he was aware of Boyler’s sex offense and considers it irrelevant to Boyler’s case against Lackawanna.

Prosecuted in Orchard Park Town Court and sent to jail, Boyler was convicted of attempting to possess a sexual performance by a child, according to state records.

The details of his criminal case could not be obtained, but records indicate he is a Level 1 sex offender, which means he’s considered a low risk to repeat his crime.

And the recent dispute in Lackawanna has nothing to with that earlier felony conviction in Orchard Park, his lawyer says.

“He was not arrested because of his status as an offender,” Ostrowski said of his client’s run-in with police last year. “He was arrested because he posted on Facebook.”

Boyler’s lawsuit is not the first free speech-social media case in Western New York.

Fired in 2010 for going on Facebook to complain about working conditions, five former employees at Hispanics United in Buffalo filed a complaint with the National Labor Relations Board. The employees said the First Amendment protected their postings, and the NLRB agreed.

The board’s ruling, one of the first on how far workers can go when talking about work on social media, gained national attention at a time when more and more people are finding themselves in legal trouble because of what they posted on Facebook or Twitter.

Some courts, for example, have held that posting something on the Web is similar to publishing. Does that mean libel laws may apply to social media?

In 2012, Lord Alistair McAlpine of Britain filed defamation claims against 20 tweeters who mistakenly linked him by name to a child abuse scandal in North Wales. The tweets followed a BBC news program that accused an unnamed “senior Conservative” of abuse but never mentioned McAlpine by name.

When it became clear McAlpine was not involved in the scandal, his accuser and the BBC apologized. McAlpine later dropped his defamation claims, but his story remains a prominent lesson on how easily someone’s reputation can be damaged by social media.