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ASP blocking citizen on Facebook ruled unlawful

by Dale Ellis | October 10, 2021 at 12:00 a.m.

A federal judge has ruled that Arkansas State Police erred in blocking a citizen from access to its Facebook page when a social media administrator took umbrage with remarks posted only to the private messages section of the agency's official account.

Chief U.S. District Judge D. Price Marshall Jr. ruled last month that administrators of the state police social media sites should not have blocked James Andrew Tanner from participating on its Facebook site after comments Tanner sent via private message -- visible only to the administrators themselves -- were deemed to be offensive.

Marshall issued his judgment in the case Sept. 30 after a trial in July in which a jury found that the Arkansas State Police blocked Tanner "because of what he said in private messages" and awarded him $1 in nominal damages.

In a memorandum opinion and order issued the same day, Marshall found that, as the jury had concluded, Tanner was not discriminated against because of the views but even so, "the agency acted against him for speaking. ... The agency's decision to block Tanner was an adverse action that would chill a person of ordinary firmness from continuing in the activity."

Regarding the state police agency's contention that it was not obligated to listen to Tanner, Marshall concurred in saying page administrators could ignore and/or delete Tanner's private messages but could not ban him from a public forum based on what he said in private messages.

"If the State Police had designated an area outside its headquarters as a place for citizens to stand and speak," Marshall said in his order, "the agency could not bar Tanner from doing so simply because he had cursed at a Trooper on the telephone."

Because Tanner's private messages didn't meet any of the criteria for exceptions to First Amendment speech, such as containing obscene or erotic content, "fighting words ... inflict injury," and because only people who saw the comments were the administrators themselves, there was no risk of inciting "a breach of the peace," Marshall said "blocking Tanner on account of profanely critical private messages offended the First Amendment."

Tanner, a White County resident, filed the lawsuit in 2017 after a pair of 2014 encounters with police at a Searcy Walmart that resulted in charges -- later dropped -- and in Tanner's banishment from the Arkansas State Police public Facebook page after sending private messages that resulted in administrators blocking him from the public discussion page.

Tanner sued, alleging malicious prosecution and First Amendment violations.

In his judgment, Marshall ordered Col. Bill Bryant, commander of the Arkansas State Police, to "develop and implement a narrower approach to filtering comments on the State Police's Facebook page." Marshall warned that adopting a narrower approach could not engage in viewpoint discrimination.

He also ruled that Tanner is entitled to reasonable attorney's fees and costs and the deadline to file such a motion is Oct. 29.

Print Headline: ASP blocking citizen on Facebook ruled unlawful

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