Chief U.S. District Judge D.P. Marshall Jr. ruled that the Arkansas State Police unlawfully used Facebook’s built-in profanity filters moderation tools to the strongest available setting and imposed a custom filter blocking words such as “pig,” “copper,” and “jerk,” which automatically deletes any posts making such comments.

“But people are free to say those words. The First Amendment protects disrespectful language.”

Now Arkansas taxpayers are on the hook to pay the attorney fees and court cost again because immunity still protects state employees that break the law from having to pay out of their own pocket.

The history on this case leads back to an unlawful arrest that led a jury to award James Tanner damages of $1 because trooper Kurt Ziegenhorn arrested Tanner at a Searcy Walmart because he was openly carrying a .45 pistol. Tanner sued for malicious prosecution and free speech violations. After he won State Police banned Tanner from their Facebook page.

Facebook’s control of which words it alone will and will not tolerate does not free the State Police from complying with the First Amendment. Chief U.S. District Judge D.P. Marshall Jr. concluded that Tanner did not suffer a constitutional violation because a comment had been deleted and then later restored, but the judge said “the record was clear. The State Police had retaliated against him for speaking profanely in a telephone conversation with a State Police lieutenant”.

“Courts have made clear that criticism of police is protected speech. The judge went on to say The State Police can “hang up” on Tanner. 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”.

“State Police and other agencies must consider turning the profanity filter off, or selecting a weak or medium setting, supplemented with a narrowly tailored list of obscenities that it wants to block. The Court leaves the specifics to the agency. The Court holds only that the State Police’s current filter choice is not narrow enough for this designated public forum”. The judgment is against Col. Bill Bryant, director of the State Police, in his official capacity.

“The Court orders Colonel Bryant to unblock Tanner from the State Police’s Facebook page. The Court further orders Colonel Bryant to develop and implement a narrower approach to filtering comments on the State Police’s Facebook page. This narrower approach must not engage in any viewpoint discrimination. Tanner is entitled to a reasonable attorney’s fee, and costs as may later be allowed on timely motion, on these free speech claims. The Court encourages the parties to confer and attempt to resolve the attorney’s fees and costs issues. Tanner’s deadline for filing any motion seeking those items is 10/29/2021”.

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