A report from the Washington Examiner via Yahoo News says that federal Judge Price Marshall ruled Sept. 30 that Arkansas State Police had unlawfully used Facebook moderation tools to censor comments on its Facebook page.

The agency used Facebook’s built-in profanity filter to the strongest available setting and imposed a custom filter blocking words such as “pig,” “copper,” and “jerk,” which automatically deletes any users’ posts making such comments.

 

“But people are free to say those words,” wrote Chief U.S. District Judge D.P. Marshall Jr. in the court’s opinion. “The First Amendment protects disrespectful language.”

The decision will cost the agency money in attorney fees for the prevailing party. Remember that the State Police, as a government agency, is subject to this 1st Amendment protection while private parties are free to censor as they choose.

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The lawsuit was brought by James Andrew Tanner and you can read the opinion here. Tanner’s unhappiness with the State Police dates back to a 2014 encounter in a Searcy Walmart with off-duty trooper Kurt Ziegenhorn because Tanner was openly carrying a .45 pistol. He was escorted from the store. A second such visit led to a criminal charge that was dismissed. Tanner then sued for malicious prosecution and free speech violations.

The case went to trial in July and a jury awarded Tanner nominal damages of $1 over his arrest.  But the parties agreed that terms of Facebook use (State Police banned Tanner from the page), required further examination by the judge. His order said:

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The deep issue is whether the State Police’s enforcement of the page’s terms and conditions – including blocking Tanner and using a filter- is consistent with the First Amendment.

The judge concluded Tanner hadn’t suffered a constitutional violation because a comment had been temporarily deleted then restored. But he said the record was clear the State Police had retaliated against him for speaking profanely in a telephone conversation with a State Police lieutenant. Courts have made clear that criticism of police is protected speech, the judge said.

The State Police can “hang up” on Tanner,  the judge said.

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The page administrators can, as Kennedy put it, hang up on Tanner’s private messages. They can ignore them. They can delete them. The State Police may not, however, block Tanner from participating in its designated public forum based on his profane private messages. If the State Police had designated an area outside its headquarters as a place for citizens to stand and speak, the agency could not bar Tanner from doing so simply because he had cursed at a Trooper on the telephone.

The State Police used a “strong” moderation filter. The judge said a filter is in order, given the broad audience that might see the State Police page. The fact that Facebook might filter words automatically, unknown to State Police, doesn’t let them off the hook in this case, however.

Facebook’s control of which words it alone will and will not tolerate, though, doesn’t free the State Police from complying with the First Amendment in the filtering decisions the agency can make. In these circumstances, if further study yields no additional information, then the State Police must consider turning the profanity filter off, or selecting a weak or medium setting, supplemented with a narrowly tailored list of obscenities that it wants to block. The Court leaves the specifics to the agency. The Court holds only that the State Police’s current filter choice is not narrow enough for this designated public forum.

Second, there is no plausible explanation for the words “pig”, “pigs”,” copper”, and “jerk” being on the State Police’s list of additional bad words other than impermissible viewpoint discrimination. The jury concluded that the State Police didn’t delete any of Tanner’s comments due to the views he expressed. Yes, but that’s not the whole story. The Court finds that the additional words chosen by the State Police when it set up the page stopped some of his comments from being posted publicly due to their anti-police connotations. There was really no dispute about this fact. The slang terms “pig”, “pigs”, and “copper” can have an anti-police bent, but people are free to say those words. The First Amendment protects disrespectful language. And “jerk” has no place on any prohibited-words list, given the context of this page, the agency’s justification for having a filter, and the harmlessness of that word. Though some amount of filtering is fine in these circumstances, the State Police’s current list of specific words violates the First Amendment.

The judgment is against Col. Bill Bryant, director of the State Police, in his official capacity. The judge wrote:

The Court orders Colonel Bryant to unblock Tanner from the State Police’s Facebook page. The Court further orders Colonel Bryant to develop and implement a narrower approach to filtering comments on the State Police’s Facebook page. This narrower approach must not engage in any viewpoint discrimination. Tanner is entitled to a reasonable attorney’s fee, and costs as may later be allowed on timely motion, on these free speech claims. The Court encourages the parties to confer and attempt to resolve the attorney’s fees and costs issues. Tanner’s deadline for filing any motion seeking those items is 10/29/2021.