The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Arkansas State Police Filtering Out of "Pig," "Copper," "Jerk" in Facebook Posts = Unconstitutional Viewpoint Discrimination


So holds Tanner v. Ziegenhorn, decided Thursday by Judge D.P. Marshall Jr. (E.D. Ark.):

[T]here is no plausible explanation for the words "pig", "pigs"," copper", and "jerk" being on the State Police's list of additional bad words [that are filtered out from Facebook comments on the State Police page] other than impermissible viewpoint discrimination…. [T]he additional words chosen by the State Police when it set up the page stopped some of [plaintiff's] comments from being posted publicly due to their anti-police connotations….

The slang terms "pig", "pigs", and "copper" can have an anti-police bent, but people are free to say those words. The First Amendment protects disrespectful language. And "jerk" has no place on any prohibited-words list, given the context of this page, the agency's justification for having a filter, and the harmlessness of that word. Though some amount of filtering is fine in these circumstances, the State Police's current list of specific words violates the First Amendment.

The court had earlier concluded that the commenting space on a government agency's Facebook page is a sort of designated public forum, where First Amendment rules constrain the government's ability to block comments.