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from the criticizing-the-government-still-at-the-top-of-the-1st-Amendment-list dept

When government entities use private companies to interact with the public, it can cause some confusion. Fortunately, this isn't a new problem with no court precedent and/or legal guidelines. For years, government agencies have been utilizing Twitter, Facebook, Instagram, etc. to get their message out to the public and (a bit less frequently) listen to their comments and complaints.

Platforms can moderate content posted to accounts and pages run by public entities without troubling the First Amendment. Government account holders can do the same thing, but the rules aren't exactly the same. There are limits to what content moderation they can engage in on their own. A case involving former president Donald Trump's blocking of critics resulted in an Appeals Court decision that said this was censorship -- a form of viewpoint discrimination that violated these citizens' First Amendment rights.

A decision [PDF] from a federal court in Arkansas arrives at the same conclusion, finding that a page run by local law enforcement engaged in unlawful viewpoint discrimination when it blocked a Facebook user and created its own blocklist of words to moderate comments on its page. (h/t Volokh Conspiracy)

This case actually went in front of a jury, which made a couple of key determinations on First and Fourth Amendment issues. The federal court takes it from there to make it clear what government agencies can and can't do when running official social media accounts.

Plaintiff James Tanner commented on the Arkansas State Police's Facebook page with a generic "this guy sucks" in response to news about the promotion of a state trooper. That post was removed -- then reinstated -- by the State Police.

While that may have been a (temporary) First Amendment violation, the court says this act alone would not create a chilling effect, especially in light of the comment's reinstatement shortly after its deletion.

However, the State Police took more action after Tanner contacted the page via direct message with messages that were far more direct. In response to the State Police's threat to ban him if he used any more profanity in his comments, Tanner stated: "Go Fuck Yourself Facist Pig." For that private message -- seen by no one but Tanner and Captain Kennedy, who handled moderation of the State Police page -- Tanner was blocked. Kennedy compared the block of Tanner as the equivalent of "hanging up" on a rude caller.

The court disagrees. It's not quite the same thing. "Hanging up" on someone terminates a single conversation. What happened here was more analogous to subjecting Tanner to a restraining order that forbade him from speaking to state troopers or about them.

Tanner profanely criticized the State Police for the deletion of his comments. That was protected speech, as "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." City of Houston, Texas v. Hill, 482 U.S. 451, 461 (1987). That protection extends to saying "fuck you" to a police officer in person, Thuraraijah v. City of Fort Smith, Arkansas, 925 F.3d 979,985 (8th Cir. 2019), and the Court doesn't see a meaningful difference in the circumstances presented here. Plus, though profane, Tanner's private messages also criticized the actions the State Police took in response to his Facebook comments. The Court finds that the agency's decision to block Tanner was an adverse action that would chill a person of ordinary firmness from continuing in the activity.

[...]

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.

Adding to the First Amendment violations was the Police's handcrafted blocklist, which added words and phrases not deemed offensive by Facebook's moderation rules. This was apparently unexpectedly revealed during discovery and the blocklist shows the agency engaged in automated viewpoint discrimination.

In addition to selecting a profanity filter setting, Facebook page administrators can also add specific words to a filter list. Corporal Head added the following words: "jackass", "pig", "pigs", "n*gga", "n*gger", "ass", "copper", and "jerk". Doc. 70-14 at ,r 15.

These terms blocked a couple of Tanner's last comments on the State Police page prior to the agency blocking his account completely. The court doesn't care for this at all.

First, it says the agency doesn't even know what content it's blocking because it has yet to obtain a list of terms/phrases blocked by Facebook's moderation efforts. Without this information, it can't definitively testify how much otherwise permissible speech is being blocked by proxy.

Far more troubling is the State Police's artisanal blocklist, which obviously aims to mute as much criticism of law enforcement as possible.

[T]here 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.

This is an additional First Amendment violation, above and beyond what was affirmed by the jury's verdict.

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.

Tanner wins. The State Police lose and will hopefully learn something from this remedial First Amendment class. Whatever judgment is rendered (Tanner was only asking for nominal damages in one count, but there are multiple allegations here), the State Police will have to pay. Qualified immunity has already been denied and the additional determinations made by the court make it extremely clear this was clearly established violation of Tanner's First Amendment rights.

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Filed Under: 1st amendment, muting, police, social media

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Court Tells Arkansas Troopers That Muting Anti-Cop Terms On Its Facebook Page Violates The 1st Amendment - Techdirt