What can you say to a cop?
Where does free speech end and crime begin?
A Janesville man is asking these constitutional questions in Rock County Court.
On Tuesday, Aaron M. Oleston asked a judge to dismiss disorderly conduct and obstructing charges, saying he had the right to utter profanities and say other ugly things to Janesville police officers.
“You work for this piece-of-s---t organization, you Nazi, ISIS organization,” he is alleged to have said to some officers walking to the police station in civilian clothes on their way to begin their shift Aug. 13.
He then asked some officers leaving the police station in civilian clothes if they were going home to beat their wives.
Oleston has used a variety of vulgar expressions to express his apparent displeasure at local police.
Oleston had been asking police questions in Janesville and elsewhere in the area for some time while video-recording them as they worked. He posted the videos on his YouTube channel. This appears to have been the first time he was arrested for it.
Incidents Aug. 13 and 15 went over the line, the Rock County District Attorney’s Office decided, and Oleston was charged with the misdemeanors.
Oleston’s lawyers, Jim Fitzgerald and Walt Isaacson of the public defender’s office, argued in a brief that Oleston had the right to use that language.
The criminal complaint indicates officers did not respond to Oleston until he stood at the curb line at the police station Aug. 15 and “stuck his camera in front of (an officer’s) vehicle as he was attempting to leave.”
Oleston had been using profane language and hollering at officers and complaining that the squad car didn’t have a front license plate, according to the complaint.
This behavior apparently led to the obstructing charge.
Judge John Wood noted in court Tuesday that municipal vehicles have only rear plates.
An officer told him he was under arrest during the camera incident, but Oleston refused to put his camera down, and an officer took the camera from Oleston and handcuffed him, according to the complaint.
The defense also cited the U.S. 7th Circuit Court of Appeals, which has jurisdiction over Wisconsin: “Illinois courts have time and again held that arguing with a police officer, even if done loudly, or with profane or offensive language, will not in and of itself constitute disorderly conduct.”
The defense lawyers said their client’s words were “repugnant,” but they said he was expressing his opinion of Janesville police officers
“The right of citizens to criticize their government is central to the First Amendment,” they argued. “Although the criticism may be unwarranted and obnoxious, the speech remains protected.”
The lawyers concluded their argument with words from Benjamin Franklin: “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”
Wood agreed with Assistant District Attorney Jerry Urbik’s argument that the First Amendment does not protect obscenity, defamatory or “fighting words” that could incite people to lawless action.
Wood noted the state disorderly conduct statute defines the crime as engaging in “violent, abusive, indecent, profane, boisterous, unreasonable loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance.”
Wood said the statute has survived constitutional challenges many times, but he noted a 2017 state Supreme Court ruling that says the issue of whether profane conduct that tends to promote a disturbance is protected as free speech “is clearly unsettled law.”
Wood cited a balancing test used in some cases: The harm to the public balanced against the social value of the speech.
But Wood said he couldn’t even figure out what Oleston was trying to say.
“It certainly appears to this court to be speech devoid of any social value and certainly, in my opinion, can provoke a disturbance,” Wood said.
“In many respects, I think it would be fair to characterize this as essentially stalking these officers,” Wood said.
“I don’t find any legal basis for the conclusion that these law enforcement officers forfeit their rights to enjoy the privilege of being left alone on their way to and from work,” Wood said.
“There are still unresolved factual issues that I think a jury is going to have to decide,” Wood said in denying the motion to dismiss.
Wood set a trial for July 29.