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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.


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