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Thursday, December 23, 2021

Illinois Liquor Control Commission Issues Guidance on Liquor Delivery

The Illinois Liquor Control Commission (ILCC) issued a legislative bulletin this week including guidance on the new liquor delivery law going into effect on January 1, 2022. The guidance is mostly targeted at the retailers who want to take advantage of the new law that allows liquor delivery; however, municipalities that license these retailers may want to be aware of the new rules and consider whether they need to update their local liquor codes to be consistent with the new law.

As a reminder, the new law preempts home rule and non-home rule units (except for Chicago) and allows certain state-authorized liquor deliveries effective January 1, 2022. “Delivery” means the movement of alcoholic liquor purchased from a licensed retailer to a consumer through:

  1. delivery within the licensed retailer’s parking lot, including curbside, for pickup by the consumer;
  2. delivery by an owner, officer, director, shareholder, or employee of the licensed retailer; or
  3. delivery by a third-party contractor, independent contractor, or agent with whom the licensed retailer has contracted to make deliveries of alcoholic liquors.

Deliveries must be made within 12 hours from the time the alcoholic liquor leaves the retailer’s licensed premises, and “delivery” does not include use of common carriers.

The new ILCC guidance only allows deliveries by retailers that are designated by the ILCC as licensed for off-premises consumption or combined off-premises/on-premises consumption. All alcoholic liquor must be delivered in the original package unless the liquor is delivered under the cocktails-to-go law. While cocktails-to-go deliveries must be made by a person 21 years of age or older, the guidance provides that other liquor deliveries may be made by a person 18 years of age or older subject to local ordinance.

The guidance also states that the retailer and its third-party delivery agent must comply with specific sections of the Liquor Control Act, including Section 6-16 (prohibited sales and possession), Section 6-29 (winery shipper’s license), and Section 6-29.1 (direct shipments of alcoholic liquor). While Section 6-29 states its labeling, signature, and delivery confirmation requirements only apply to wine, the state guidance applies these requirements to all deliveries of alcoholic liquor under the new law:

  • All packages containing alcoholic liquor must be clearly labeled “CONTAINS ALCOHOL. SIGNATURE OF A PERSON 21 YEARS OF AGE OR OLDER REQUIRED FOR DELIVERY. PROOF OF AGE AND IDENTITY MUST BE SHOWN BEFORE DELIVERY.” This warning must be prominently displayed on the packages.
  • A retailer must require the transporter that delivers the package to obtain the signature of a person 21 years of age or older at the delivery address at the time of delivery.
  • At the expense of the retailer, the retailer must receive a delivery confirmation from the third-party delivery company indicating the location of the delivery, time of delivery, and the name and signature of the individual 21 years of age or older who accepts delivery.

The guidance also requires retailers and their third-party agents to comply with all local, state, and federal delivery laws, including the alcohol delivery laws of other states. Significantly, retailers will be liable for delivery violations of third-party delivery agents.

The legislative bulletin also provides that, under similar conditions, licensed off-premises and combined off-premises/on-premises retailers may ship alcoholic liquor in the original package to a consumer by common carrier if allowed by the local liquor control commission or local ordinance.

Post Authored by Dan Bolin & Erin Monforti, Ancel Glink

Wednesday, December 22, 2021

PAC Finds Public Body in Violation of FOIA for Withholding Certain 911 Call Data

In August 2021, a reporter submitted a FOIA request to the City of Chicago’s Office of Emergency Management and Communications (OEMC) seeking certain 911 call data, including response times to incidents. Although OEMC provided a data set responsive to the FOIA request, OEMC withheld 911 response times pursuant to FOIA exemption 7(1)(d)(vi), which exempts records that would endanger the life or physical safety of law enforcement personnel or any other person, and FOIA exemption 7(1)(v), which exempts from disclosure certain response policies and plans designed to identify, prevent, or respond to potential attacks on a community’s population, systems, facilities or installations.

The reporter then appealed to the PAC Office of the Attorney General, which office issued an opinion finding that OEMC violated FOIA by improperly withholding the 911 call response time data pursuant to FOIA exemptions 7(1)(d)(vi) and 7(1)(v). PAC Op. 21-012.

Specifically, the PAC rejected OEMC’s speculative assertions that 911 call response times could (rather than would) endanger the life of safety of first responders or other people, because OEMC’s assertion that response times could be used to target criminal activities in areas that take longer for police personnel to respond to than others were conclusory and unsupported by a detailed factual basis. Unless the response time data clearly demonstrates a pattern of consistently slower response times within particular districts that could be exploited for criminal purposes, which the PAC said OEMC failed to assert or prove, the PAC concluded that OEMC improperly withheld the 911 response time data under exemption 7(1)(d)(vi).

The PAC also concluded that OEMC improperly withheld the 911 response times under exemption 7(1)(v) because the plain language of exemption 7(1)(v) only applies to three categories of records (vulnerability assessments, security measures, and response policies or plans), not to factual response time data demonstrating the performance of public duties by public employees, and response time records are not plans designed to meet any objective stated in the exemption, so response time records fall outside the scope of the exemption.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, December 21, 2021

Public Body Did Not Waive FOIA Exemptions

In 2017, a law firm submitted a FOIA request to a Police Department seeking certain 2017 motor vehicle traffic accident reports. After the Department produced redacted accident reports to the requester, the requester sued the Department alleging that the Department improperly redacted non-exempt information under FOIA, and alternatively, even if the Department’s redactions were proper, the Department waived its ability to assert FOIA exemptions because the Department had previously provided unredacted accident reports to a third party vendor, LexisNexis. 

We previously reported on the First District Appellate Court’s decision upholding the Department’s redactions as proper and finding the Department did not waive its right to redact accident reports in response to a FOIA request, because even though the Department previously provided unredacted copies of the same reports to a third-party vendor (LexisNexis), the vendor was acting as the Department’s agent under a contract in order to comply with the Department's mandatory reporting obligations under section 408 of the Vehicle Code, which requires the Department to file motor vehicle accident reports with the Secretary of State and the Department of Transportation

On appeal to the Illinois Supreme Court, the requester solely argued that the Department should be precluded from asserting applicable FOIA exemptions because they previously voluntarily disclosed unredacted reports to its third party vendor. In a recently issued decision, the Illinois Supreme Court rejected the requester's waiver argument and upheld the validity of the Department’s redactions finding that a public body does not waive an individual's interest in his or her own personal or private information, despite the public body having previously provided a state-approved vendor unredacted copies of the same reports to comply with its mandatory reporting obligations under state law.

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, December 20, 2021

New Law Amends Election Code to Restrict Contributions to Judicial Campaigns

The Illinois General Assembly recently passed Public Act 102-0668, which, among other things, amends the Election Code to regulate the influence of “dark money” and out-of-state contributions on Illinois judicial election campaigns.

Specifically, the new law prohibits a candidate political committee established to support a candidate seeking judicial nomination from accepting contributions (1) from any entity that does not disclose their identity and (2) from any out-of-state person.

Regarding contributions to a candidate political committee established to support a candidate seeking judicial nomination, the new law also prohibits:

  • any person from making a contribution in the name of another person or knowingly permitting their name to be used to effect a prohibited contribution or knowingly accepting a contribution made by one person in the name of another person; 
  • a person from knowingly accepting reimbursement from another person for a contribution made in that person’s name; 
  • any person from making or knowingly accepting anonymous contributions; and 
  • any person from predicating any benefit (e.g., employment decisions) or any other gift, transfer or emolument upon either (i) the decision by the benefit recipient to donate or not to donate to a candidate; or (ii) the amount of any such donation.

The new law also prohibits any judicial candidate or political committee established to support a judicial candidate from knowingly accepting any contribution or making any expenditure in violation of this new law.

Finally, the new law also prohibits any officer or employee of a political committee established to support a judicial candidate from knowingly accepting a contribution made for the benefit or use of a candidate or knowingly making any expenditure in support of or opposition to a candidate or for electioneering communications in relation to a candidate in violation of any limitation designated for contributions and expenditures under the new law.

Post Authored by Eugene Bolotnikov, Ancel Glink

Friday, December 17, 2021

PAC Finds In Favor of Public Body in Challenge to Remote Meeting

The Public Access Counselor of the Illinois Attorney General's office (PAC) just issued a binding opinion finding no OMA violation where a public body conducted its meeting remotely via Zoom. PAC Op. 21-011.

In September, a school board conducted its board meeting via Zoom, with no in-person attendance by the public. The board heard public comment, and one member of the public objected during public comment to the board's decision to hold the meeting remotely. After the meeting, that member of the public filed a request for review with the PAC alleging that the board's decision to hold the meeting remotely violated the OMA. She argued that the board's rationale for holding the meeting remotely (because of the COVID-19 pandemic) was a pretext to avoid having members of the public attend the meeting in-person, particularly since the board had conducted its previous meeting in-person.

The board filed a response to the request for review with the PAC, explaining that the board followed the process set out in section 7(e) of the OMA for conducting a remote meeting while the Governor's disaster proclamation was still in effect. The board referenced language that it had placed on its meeting agenda that explained that the meeting would be held remotely because of the pandemic. The board also explained that at the board's August meeting, there were a number of people in attendance who refused to comply with the mask requirement, which also disrupted the board's meeting when they refused to either put on a mask or leave the meeting. 

The PAC reviewed the recording of the board's August and September meetings, as well as the board's September agenda and explanation in its response. First, the PAC found that the board followed the requirements of 7(e) of the OMA in conducting the remote meeting because (1) the Governor's disaster proclamation is still in effect, (2) the board president made a determination that it was not practical or prudent to hold an in-person meeting due to the pandemic, and (3) the board provided access to the public through the Zoom platform. Second, the PAC noted that the person who filed the complaint was allowed to participate in the September remote meeting via Zoom and, in fact, spoke during public comment at that meeting. The PAC also noted that it was within the board's discretion to decide not to hold an in-person meeting given the disruptive noncompliance with the mask requirement by numerous members of the public at the board's previous meeting, so long as the board followed the OMA requirements.

This opinion provides very helpful guidance to public bodies in complying with section 7(e) of OMA that authorizes remote meetings while the Governor's COVID-19 disaster proclamation is in effect.

Appellate Court Confirms Standard of Review for Zoning Challenges

Zoning decisions by municipalities and counties can often be controversial and sometimes end up in litigation.  How these zoning decisions should be reviewed by the courts has been the subject of much debate (and legislation) in Illinois over the past few decades.  Last week, the Appellate Court of Illinois for the Fourth District once again addressed this issue in Schreiner v. County of Logan, et al.

In Schreiner, the Logan County Board approved a rezoning request that allowed a property to be used for limestone mining and crushing. The plaintiffs, who owned adjoining property, sued the county challenging its approval of the rezoning, claiming the county violated several provisions of the Counties Code or the county’s own zoning ordinance. The neighbors also claimed they were not provided a sufficient opportunity to be heard at the public hearings on the rezoning request. After a trial, the circuit court upheld the rezoning decision, finding that the neighbors failed to provide evidence that the decision violated their substantive or procedural due process rights.

On appeal, the appellate court upheld the decision in favor of the county, and confirmed that the proper test for reviewing a legislative action is the rational basis test and not administrative review. The appellate court noted that prior decisions that deemed municipal and county zoning decision administrative in nature had been overturned when the General Assembly amended state statute. The appellate court also noted that these statutory amendments showed that the legislature intended to limit review of zoning decisions to arbitrariness as a matter of substantive due process under the rational basis test, which is evaluated using the LaSalle/Sinclair factors. 

Since the neighbors had not made any specific claim that the county’s rezoning decision violated their substantive due process rights, the appellate court upheld the trial court’s finding in favor of the county. The appellate court declined to address the neighbors' claims that the county’s rezoning decision violated the Counties Code and the County’s own zoning ordinance because the neighbors failed to argue that these alleged violations deprived them of substantive due process. The court also held that the neighbors failed to demonstrate that the county had violated their procedural due process rights because they admitted they had attended the public hearings on the rezoning request and had an opportunity to make statements during those hearings.

The Schreiner case confirms that challenges to municipal and county zoning decisions are limited to substantive and procedural due process grounds.

Post Authored by Erin Monforti & Kurt Asprooth, Ancel Glink

Tuesday, December 14, 2021

OMA Amendment Addresses Review of Executive Session Minutes

We did not see much activity in this session of the Illinois General Assembly regarding the Open Meetings Act or FOIA. The one bill that did pass amends the provisions relating to review of executive session meeting minutes.

Previously, each public body was required to conduct a review of their executive session minutes no less than semi-annually. P.A. 102-0653 amended the OMA to address public bodies that do not meet regularly. Under this Act, public bodies are now allowed to review their executive session meeting minutes every six months or as soon as practicable. The Act also also allows ad hoc committees to review their executive session meeting minutes at their next meeting. 

Post Authored by Dan James & Julie Tappendorf

Monday, December 13, 2021

New Laws for 2022: Affordable Housing

UPDATED POST. Today, we are reporting on some of the new laws that will take effect in 2022 that address affordable housing.

P.A. 102-0175 amends the Affordable Housing Planning and Appeal Act to require that non-exempt municipalities (those municipalities that the State of Illinois has determined do not meet the State's 10% threshold for "affordable housing") provide notice and hold a public hearing on any new affordable housing plan or any amendment to an existing plan. The amendment also gives the Attorney General enforcement power for the Act’s reporting requirements related to the development of an affordable housing plan. If a non-exempt local government does not submit its plan in a timely manner, the AG can file an action for mandamus or injunctive relief or take appropriate relief to ensure compliance. The Act provides that a home-rule unit "may not regulate the activities described in this Act in a manner more restrictive than the regulation of those activities by the State under this Act." 

This new law also creates the COVID-19 Affordable Housing Grant Program Act which provides that the housing development authority shall establish a grant program to encourage the construction and rehabilitation of affordable multi-family housing in response to the pandemic. This requirement is subject to appropriations provided by the grant fund. We wrote about the Act here.

P.A. 102-0062 allows non-exempt local governments, community college districts, and the State of Illinois to develop affordable housing for students around community colleges in coordination with a nonprofit affordable housing developer.  

Post Authored by Dan James & Julie Tappendorf, Ancel Glink

Friday, December 10, 2021

New Liquor Law for 2022

P.A. 101-0668 preempts the authority of home rule and non-home rule units (except for Chicago) to restrict certain state-authorized liquor deliveries effective January 1, 2022. 

“Delivery” means the movement of alcoholic liquor purchased from a licensed retailer and delivered to a consumer through:

  1. delivery within the licensed retailer’s parking lot, including curbside, for pickup by the consumer;
  2. delivery by an owner, officer, director, shareholder, or employee of the licensed retailer; or
  3. delivery by a third-party contractor, independent contractor, or agent with whom the licensed retailer has contracted to make deliveries of alcoholic liquors.

Deliveries must be made within 12 hours from the time the alcoholic liquor leaves the retailer’s licensed premises, and “delivery” does not include use of common carriers such as buses or trains. 

Post Authored by Dan James & Julie Tappendorf, Ancel Glink

Thursday, December 9, 2021

New Land Use & Economic Development Laws for 2022

Over the next week or so, we will summarize some of the new laws that are taking effect in 2022 that will be of interest to local governments. For those of you who follow our Quorum Forum Podcast, you have already heard about some of these.

Today's post focuses on new laws that affect zoning, land use, and economic development:

P.A. 102-0078, or Hayli’s Law, prohibits local health departments and public health districts from regulating lemonade stand sales by a person under the age of 16. We previously wrote about this new law here.

P.A. 102-0180 permits any person to cultivate vegetable gardens on their own property. The purpose of the Act is to encourage the cultivation of fresh fruit and produce at all levels of production, including on residential property for personal consumption. Under the law, a vegetable garden is any "vegetable garden" means any plot of ground or elevated soil bed on residential property where vegetables, herbs, fruits, flowers, pollinator plants, leafy greens, or other edible plants are cultivated. There is a home-rule restriction that states that home rule units may not regulate vegetable gardens in a manner inconsistent with the Act. Restrictions may still be made on the basis of height, water use, fertilizer use, or other characteristics. We previously reported on this Act here.

P.A. 102-0098 opens at least 50 new state licenses for adult-use cannabis dispensaries over the course of 2022. Five of the licenses will be issued through a social equity program aimed at issuing licenses to a “disproportionately impacted area.” Those areas meet certain statutory criteria such as having 20% of households receiving assistance under the Supplemental Nutrition Assistance Program or an unemployment rate more than 120% the national average. The Act sets January 1, 2022 as the deadline for the Department of Agriculture to publish an application to issue additional Conditional Adult Use Dispensing Organization licenses.

P.A. 102-0108 will expand the Illinois Enterprise Zone Act to authorize 97 (instead of 12) enterprise zones to be certified in a calendar year. The Act also provides that at least 25% of zones available for designation must be awarded to zones in counties with populations under 300,000. For those zones set to expire before 2024, the application process begins five years prior to expiration. Expiring zones may reapply, but other areas may compete for the designation.

The amendment also implements new consequences for zones failing to file reports of any capital investment, job creation or retention, or state tax expenditures for three consecutive years. After the Department of Commerce notifies the chief elected official of the county or municipality that is not compliant, the Department will place the county or municipality on probationary status for at least 6 months. If corrective action is not achieved during the probationary period, the Department will decertify the zone.

P.A. 102-0127 amends TIF reporting requirements. Beginning in FY-2022, municipalities that submit the required TIF reports will also be required to report to the State Comptroller the following: (1) the number of jobs projected to be created for each redevelopment project area at the time of approval of the redevelopment agreement; (2) the number of jobs, if any, created as a result of the development to date for that reporting period under the same guidelines and assumptions as was used for the projections used at the time of approval of the redevelopment agreement; (3) the amount of increment projected to be created at the time of approval of the redevelopment agreement for each redevelopment project area; (4) the amount of increment created as a result of the development to date for that reporting period; and (5) the stated rate of return identified by the developer to the municipality for each redevelopment project area, if any.

Post Authored by Dan James & Julie Tappendorf, Ancel Glink

Wednesday, December 8, 2021

Court Issues Injunction Against Texas Law Restricting Social Media Platform Moderation

Many of you may have been following the law adopted by the State of Texas legislature prohibiting censorship by social media companies like Facebook, Twitter, and others which was the subject of a recent federal lawsuit. The court issued an initial ruling in that case recently, which "stayed" enforcement of the law for now.  Netchoice LLC v. Ken Paxton.

HB 20 makes it unlawful for a “social media platform” (like Facebook, Twitter, etc) to censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on: 

(1) the viewpoint of the user or another person;

(2) the viewpoint represented in the user’s expression; or

(3) a user’s geographic location in this state or any part of this state. 

HB 20 carves out two content-based exceptions to the law's broad prohibition: 

(1) platforms may moderate content that “is the subject of a referral or request from an organization with the purpose of preventing the sexual exploitation of children and protecting survivors of sexual abuse from ongoing harassment,” and 

(2) platforms may moderate content that “directly incites criminal activity or consists of specific threats of violence targeted against a person or group because of their race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge.” 

The law authorizes a user who believes a platform has improperly “censored” his or her viewpoint to sue the platform and obtain attorney’s fees. In addition, the Attorney General of Texas can “bring an action to enjoin a violation or a potential violation” of HB 20 and recover its attorney’s fees.

Two trade associations with members that operate social media platforms that would be affected by HB 20 sued the Attorney General for the State of Texas claiming the law violates a variety of constitutional protections, including First Amendment free speech rights and the Fourteenth Amendment’s due process and equal protections clauses, among other claims.

The the court ruled that plaintiffs were entitled to a preliminary injunction to "stay" the law from taking effect. The court held that the plaintiffs had demonstrated a likelihood of success on the merits of their First Amendment claim that the law violated their members' free speech rights. Specifically, the court determined that social media platforms have First Amendment rights to moderate content that is posted and disseminated on their own platforms. The court held that HB 20’s prohibitions on “censorship” and constraints on how social media platforms disseminate content violate the First Amendment. The court noted that these platforms have policies against content that express a viewpoint and that disallowing them from applying their own policies requires platforms to “alter the expressive content of their message.” The court found that because the law would substitute the government's editorial discretion for the private companies over the social media platforms that these companies operate and moderate, it constituted viewpoint discrimination under the First Amendment. The court also found the law to be discriminatory and unconstitutionally vague.

In sum, the court denied the State's motion to dismiss the legal challenge to the Texas law and granted injunctive relief to "stay" enforcement of the law while the challenge proceeded through the court.

Tuesday, December 7, 2021

Town Employee's Termination Did Not Violate the First Amendment

The U.S. Court of Appeals for the Seventh Circuit recently issued a decision in Sweet v. Town of Bargersville and Longstreet. The case involved a customer service employee for the Town of Bargersville who was discharged in January 2018. The employee brought civil rights claims against the Town alleging she was fired in retaliation for exercising her free speech rights under the First Amendment. 

Sweet was employed by the Town of Bargersville for nearly 20 years and claims she performed her job adequately until her primary duty—collecting utility bill payments—was outsourced in 2015. She then transitioned into a general customer service role and her performance reviews then stated she was argumentative, resistant to change, and disorganized. In August 2017, Sweet disconnected a resident’s utility services because the resident failed to pay his bills. Shortly thereafter, the Clerk-Treasurer, Steve Longstreet, reconnected the resident’s utilities, which Sweet claims in her lawsuit was motivated by his personal and business affiliation with the resident and the resident’s prominent status in the community. Sweet shared her criticisms of Longstreet and this perceived inequity with co-workers and confronted Longstreet outright.

Shortly after this reconnection incident, Sweet was prohibited from handling disconnections. In January 2018, Sweet was discharged from the Town. The Town stated that the reason she was terminated was because she was not adequately keeping up with the transition to automated systems.

Sweet filed suit in federal court which ruled in favor of the Town and Longstreet—the court found that Sweet could not establish First Amendment retaliation because she failed to show that the decision to terminate her employment was made with retaliatory motive. On appeal, the Seventh Circuit agreed with the district court's ruling but also held that Sweet’s speech was not protected by the U.S. Constitution as required by a First Amendment retaliation claim. Citing Supreme Court precedent, the Seventh Circuit reasoned that “speech that owes its existence to a public employee’s professional responsibilities,” even if not strictly required by the employer, is not protected under the First Amendment. Since Sweet’s criticism of Longstreet was directly related to her job duties as a utility-collections clerk, any perceived adverse action did not violate her free speech rights but was instead a fair response by her employer to a work-related disagreement. 

The Seventh Circuit also noted that Sweet was terminated for multiple performance deficiencies five months after she complained to Longstreet about perceived misconduct. Since Sweet failed to show that her speech was protected or that she was discharged for exercising her First Amendment rights, her termination was not unconstitutional.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Monday, December 6, 2021

Quorum Forum Podcast: Ep. 59 New Laws for 2022

Ancel Glink's Quorum Forum Podcast has released a new episode, Episode 59: New Laws for 2022! 

In this episode, Ancel Glink attorneys will share information about many of the new laws that are set to take effect in 2022 that will be of interest to local governments. 

Call the Quorum Forum Hotline (312.601.9185) to tell us your new year’s resolution, or email your questions to podcast@ancelglink.com!

Thursday, December 2, 2021

PAC FOIA and OMA Website Mostly Restored

After months of being mostly inaccessible, the Public Access Counselor's FOIA and OMA webpages are now mostly up and running, including links to the PAC's binding opinions on FOIA and OMA. What has not yet been restored, unfortunately, is the PAC's OMA and FOIA training module, which according to the website, is being updated. 

I know many local government officials have been waiting for the OMA electronic training to be available, so we will keep you posted as to the status of the electronic FOIA/OMA training. The good news is that you can access the PAC's binding opinions, as well as other PAC FAQs, educational materials, and other guidance that can assist government officials and employees in complying with these two statutes.

Wednesday, December 1, 2021

Court Finds First Amendment Violation in Facebook Moderation Case

A federal court in Arkansas issued an opinion a few months ago that may be of interest to governments that operate and moderate social media accounts, especially those that supplement Facebook's filtering settings. Tanner v. Ziegenhorn.

The Arkansas State Police operates a public Facebook page where Tanner posted various comments  that are the subject of this lawsuit. 

The first comment made a disparaging remark against a state trooper ("this guy sucks") that was removed by an officer who administered the page. After Tanner complained, the State Police allowed Tanner to repost the comment and the administrator admitted that the comment should not have been deleted. 

Tanner's second comment criticized another state trooper, accusing him of a crime. That comment was not deleted by the State Police but was hidden after the State Police blocked Tanner for his subsequent actions.

Tanner's third comment consisted of private messages sent through the messenger function in Facebook that were not publicly posted. In these private messages, Tanner accused the State Police of removing other messages he had posted that had included profanity. These private messages included profanity. The State Police blocked Tanner from the Facebook page for these private messages. 

Other comments posted by Tanner contained profanity and were screened out by profanity filters established by Facebook and supplemented by the State Police in its account settings. 

Tanner subsequently sued, claiming the State Police violated his First Amendment rights by deleting his comments and blocking him from posting on the State Police Facebook page.

The court first noted that the State Police had created a public forum when it established its Facebook page. As a result, the court held that the comment section of that page was a designated public forum that is protected under the First Amendment, although the private messaging space was not and, therefore, was not subject to the same protections as the public space. 

In considering the various actions of the State Police in moderating its Facebook page, the court found as follows:

As to the first comment, the court found no violation since the removal was only temporary and the State Police allowed him to repost it. 

However, the court did find that the State Police's blocking of Tanner from its page for posting profanity violated Tanner's First Amendment rights. The court also found that the State Police's decision to add words to Facebook's "filtering" program, (including "pig," "copper," and "jerk," among other words) was impermissible viewpoint discrimination under the First Amendment. In addition, the court found that the State Police's decision to set the Facebook filter for its page to "strong" - the setting Facebook uses to filter (and remove) the most profanity - was not narrow enough for a designated public forum. The court did acknowledge that because the State Police could not control Facebook's community standards which filter out some words that might otherwise be protected speech, any removal of comments through Facebook's actions were not imputed to the State Police. 

There are a few good lessons in this case for administrators of government social media accounts. First, administrators should be cautious in choosing among Facebook's filtering settings given this court's ruling that the State Police's choice to set its filter to "strong" was too broad. Administrators should also consider whether it is necessary to add more words to Facebook's filter given the court's ruling that this action could be considered viewpoint discrimination. If a government entity does decide to block an individual from its social media account, it should ensure that the reasons for the blocking do not implicate free speech rights (i.e., don't block someone solely for criticizing the government, which is one of the highest forms of protected speech). Finally, although a reliance solely on Facebook's "community standards" for filtering words on Facebook does not seem to create a First Amendment issue (at least not from this court's view), as noted above, care should be given if a government wants to supplement the base community standards by adding words to the filter or adopting Facebook's "strong" filter setting.