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

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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Comments on “Court Tells Arkansas Troopers That Muting Anti-Cop Terms On Its Facebook Page Violates The 1st Amendment”

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23 Comments
This comment has been deemed insightful by the community.
Anonymous Coward says:

The State Police lose and will hopefully learn something from this remedial First Amendment class.

Yeah…. no. They will have only learned that they need to take a different approach the next time they want to violate the constitution.

Kind of like QI, the only thing they learn is how to violate your rights using a different method than has otherwise been seen.

First Cop: Damn, I guess I can’t shove my pistol down somebody’s throat anymore, I didn’t know it violated their rights.

Other Cop: Just shove it up their ass next time, nobody’s done that yet.

First Cop: Great idea!!! I’ll start doing that!

Anonymous Coward says:

Corporal Head added the following words: "jackass", "pig", "pigs", "ngga", "ngger", "ass", "copper", and "jerk". Doc. 70-14 at ,r 15.

Seeing this, I had to look at the memorandum itself. While I’m confident that Corporal Head saw any offense in asterisks, the court was less willing to use the actual offensive words.

People may be offended seeing those words. They may be right to be offended.

But a court document should be accurate. Is, for instance "n*gga" the actual "word" on the police blocklist? Or is the court merely squeamish of "triggering" some reader? The court itself notes that at least some of the terms were blocked specifically by the department’s additional filter, while other of the plaintiff’s comments were blocked by (eg) Facebook’s "community standards" filter.

One last thing I found interesting in this: The ruling is on the plaintiff’s sixth amended complaint. Courts usually start getting testy when a plaintiff asks to amend their complaint even a second time.

Scary Devil Monastery (profile) says:

Re: Re:

"People may be offended seeing those words. They may be right to be offended. "

I humbly submit that the mere sight of "jackass", "jerk", "copper" and "ass" probably shouldn’t be considered offensive to anyone but the most brittle of snowflakes.

That said…freedom of speech isn’t absolute because if you allow the heckler’s veto then the only thing freedom of speech accomplishes is to ensure only the loudest and most obnoxious ever get to speak.

"Is, for instance "ngga" the actual "word" on the police blocklist?"*

Possibly – most probable, in fact. Facebook has its own filter of words it considers generally unacceptable. Hence why trolls work so damn hard at getting around blocks by using misspellings, abbreviations, 133t-speak and phonetically similar spelling.

The only real issue I’m seeing here is how, once again, a police officer doesn’t understand the most basic fundamentals of the law they’re supposed to uphold. If this is the official police webpage then, as a government entity, the only words and sentences they are allowed to block would be those who, were they expressed in public, they could go over and inform the offender that they need to not say that here.

Which in the US where there are no laws against hate speech, is a very tall barrier. And a probable reason as to why very few governmental webpages in the US – and to some degree elsewhere – have comment sections in the first place.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Nice way to show unfitness for the job I guess

If you can’t handle someone throwing mean words at you you have no business being in a profession where high-stress interactions with the public are likely to be a regular occurrence and words are the least harmful thing that might come flying your way.

PaulT (profile) says:

Re: Re: Re: Nice way to show unfitness for the job I guess

I’ve worked in supermarket produce and call centres when I was much younger and I can guarantee you that I heard stronger language attacking me for things I had no control over than these cops are reading about their own misconduct.

With any hope, these delicate flowers are the ones quitting because they’re being asked to protect their community by being vaccinated and/or quitting because they might face consequences for shooting people, and improve the overall quality of policing.

PaulT (profile) says:

Re: Re: Re:

It’s also a word that’s used for other things. Does this mean that thin-skinned police officers won’t learn about the criticism of their refusal to deal with the ongoing theft of copper wiring in their area? It would be interesting if they’re giving a free pass to certain types of criminals because they’re too weak to hear about it.

This comment has been deemed insightful by the community.
PaulT (profile) says:

"The slang terms "pig", "pigs", and "copper" can have an anti-police bent, but people are free to say those words"

If someone is offended by any of these terms, they probably need to stop working as a cop because their delicate sensibilities are not suited to being in a role where they are naturally in opposition to some members of the public.

If they’re offended by "copper", they probably need to book themselves into a calm retreat so that they can receive whatever therapy they need to be able to cope with daily life, because a sharp noise or moderate breeze will likely cause their gentle vulnerable souls to collapse at any moment.

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