In Tanner v. Ziegenhorn, a federal court in Arkansas found that the Arkansas State Police violated a citizen’s First Amendment rights by blocking him from commenting on its Facebook page and by filtering his comments through an overly-broad content filter. The citizen posted a comment to the police’s post regarding the promotion of a lieutenant, stating that “this guy sucks.” The police removed the post. Thereafter, the citizen posted another comment, which was removed when the police blocked the citizen from its Facebook page because the citizen had sent private Facebook messages to the police account containing profanities. The court found that the citizen’s messages to the police were protected by the First Amendment because the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. Even though his speech contained profanities, it was still protected by the First Amendment because the language did not contain fighting words and did not implicate a breach of the peace. The court additionally noted that the police could choose to ignore the private messages and that the First Amendment does not require them to engage with this dialogue, but they could not block him from commenting on their public Facebook page.
Furthermore, the citizen had four or five additional Facebook posts that were hidden by the police’s community standards filter, which is a mechanism on Facebook that filters the visibility of posts based on both standards set by Facebook and those set by individual page administrators. Because of the broad audience for the police’s Facebook page, the police set its community standards filter to “strong” even though the police did not know what would be censored under that setting. In addition, the police added specific terms to its filter including “pig,” “pigs,” “ass,” “copper,” and “jerk.” The citizen’s posts contained the terms “douche” and “pig.” The court opined that the word “douche” was likely captured by Facebook’s community filter, and that the word “pig” was captured by the police’s unique filters. The citizen argued that the police’s filter acted as an unconstitutional “prior restraint” on language, which prevents the government from prohibiting or preventing speech before the speech is even made. The court reasoned that the terms “pig” and “copper” express an “anti-police” sentiment and indicate that the police were intending to censor content-based language. The court also noted that the use of Facebook’s “strong” filter setting was overly broad. Accordingly, the court ordered the police to revise its filter list and the strength of its community filter.
This case serves as a reminder that the social media accounts of public bodies are considered public forums, and content-based speech and blocking citizens from commenting can implicate the First Amendment. Schools should consider this when developing their own filtering standards and when engaging with community members on social media.
Source: Tanner v. Ziegenhorn, No. 4:17-CV-780-DPM, (E.D. Ark. Sept. 30, 2021)
