Government Agencies May Not Use Facebook's Strongest Comment Filtering Settings

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

Facebook page administrators have four options for an automatic profanity filter: off, weak, medium, or strong. Corporal Head tried hard to figure out what words would be filtered by Facebook's various settings, but could not do so. She set the State Police's filter to strong because of the page's audience, which ranges from teenagers to senior citizens. Captain Kennedy said he wasn't comfortable allowing profanity because children and families frequented the page. Corporal Head was clear about the other option: the filter can be turned off. Facebook also has a community standards aspect, which acts as a basic screener and cannot be turned off. Corporal Head said that Facebook updates its community standards regularly based on users' complaints about particular words….

With limited exceptions, profanity is generally protected by the First Amendment. There are, however, instances where the government may regulate indecent or profane speech [citing dial-a-porn and broadcasting cases]. Given the constant presence of children in the State Police's Facebook audience, as well as the family-friendly aim of the page, the agency's desire to filter out obscenities is both reasonable and compelling. Tanner is correct: minors on the Internet likely encounter on a daily basis language worse than what he posted. But the abundance of four-letter words in other cyberspaces doesn't mean the State Police has to welcome them on its page.

That said, … the State Police's filter choice … is overbroad. The State Police doesn't know what words it is actually blocking. This information is apparently unavailable. Insofar as the testimony disclosed, Facebook's community standards might filter out some words even if the State Police turned the page's profanity filter off. The Court understands that Facebook has its own baseline community standards and changes them regularly. The State Police can't do anything about that.

Facebook's control of which words it alone will and will not tolerate, though, doesn't free the State Police from complying with the First Amendment in the filtering decisions the agency can make. In these circumstances, if further study yields no additional information, then the State Police 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 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.)

UPDATE: More from Prof. Eric Goldman.

Comments

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

"We don't know what the different settings do, so we will guess that the strongest filter is wrong."

[Gandydancer]

Actually the only guessing on that score was the PD's guess that "strong" was right. The court concluded that it was too strong on the known fact that it blocked "douche" and "douchebag".

[Gasman]

I'm guessing that Corporal Head gets her name censored by at least the strong, if not even the medium or weak filter...

[Gandydancer]

Nah. The filters allowed "pig", so probably don't attempt awareness of context at present. "Don't worry your head about it" is unlikely to be blocked.

[Rossami]

My question has always been 'why do government agencies allow comments on Facebook in the first place'. This is especially true of the police. I can sort of understand the desire to use technology to push out information to the community. I see no value to creating an additional forum that must be monitored.

[Gandydancer]

Creating the forum and posting to it seem an obvious way to "push out information to the community". But why "must" it be "monitored"?

And letting Facebook or Disqus or WordPress, etc., create the platform for free has obvious advantages.

[Rossami]

I think you missed my point. I have no problem with a government agency using a service such as Facebook, Disqus or WordPress to push out their information. But each of those services has options that the page owner can set. As the article above points out, Facebook gives the page owner the ability to set moderation levels. What the article doesn't so clearly point out is that one of the settings is "Comments OFF". In other words, stop setting up the page as a limited public forum and make it exclusively government speech.

This seems such an obvious way to avoid all these problems about inappropriate content, moderation, etc. Why do the agencies insist on creating all these self-inflicted wounds? What benefit do they think they are getting from allowing users to comment on their pages?

[santamonica811]

Well, I can think of several potential benefits. Allowing the public to comment can: [1] Engage people in civil affairs; [2] make people feel like the police want to hear their opinions (which may make people think more kindly of law enforcement). [3] Actually solicit good suggestions from the public. [4] Get immediate feedback from the public, which may lead the police to not begin new bad policies before they are even put into practice.

And that's just off the top of my head. Now, I have no idea if any or all of the above were contemplated. But even if I'm not sanguine about the utility of all the above, they are at least explanations as to why any public agency *might* make a conscious decision to allow commenting.

[I note all the above, while also absolutely agreeing with your own perspective that, in 2021, permitting commenting can open up a whole 'nother can of worms.]

[Gandydancer]

What benefit do they think they are getting from allowing users to comment on their pages?

Well, it may encourage members of the public to actually come and read the pages if they can respond to what is posted. It certainly affects my choice of sites I bother to read.

[santamonica811]

Good point. Hadn't thought of that one.

[Bob from Ohio]

Deciding the important issues.

requiescat in pace to "de minimis non curat lex"

[Cal Cetín]

"...but his lawyer said de minimis non curat lex, and that's how he got acquitted, har har!"

/punchline to dirty joke

[Cal Cetín]

They filter out "copper"? When did Arkansas (or Facebook) get annexed by England?

(By the way, do they filter out, "for some reason I'm hungry for a BLT"?)

[Gandydancer]

It wasn't on Facebook's list.

[Whitfield]

I’m the attorney on this case! Please read the trial brief we did. It was hilarious.

[santamonica811]

I'm quite surprised you posted this, yet made a conscious decision to not provide a direct link to said brief in your comment.

[Bubba Jones]

Who sued over this?

And why is there a first amendment right to post "douche bag" on the state police facebook page? Is it not enough to post "cops are douchebags" on your own facebook page?

OK, this is funny
"The State Police set the configurable filter to “strong,” and then manually added the following supplemental words to the filter: “jackass”, “pig”, “pigs”, “n*gga”, “n*gger”, “ass”, “copper”, and “jerk.” Tanner’s screened comments used the words “douche,” “douchebag,” or “pig.” Presumably “douche” and “douchebag” triggered Facebook’s standard community moderation filter or its “strong” filter option for page owners. “Pig” got filtered solely due to the manual supplement."

[PeteRR]

Amateur. Just complain to your Congressperson who'll then muscle FB to censor for you.