Can a city department in Arkansas legally post Bible verses on its official Facebook page, and how does the U.S. Supreme Court's Establishment Clause case law apply?

Plain-English summary

Senator John Cooper asked the AG five questions about whether a city department can post Bible verses or other religious content on its official Facebook page, government-operated TV channels, Twitter, websites, or digital signs. The questions arose from four specific Facebook posts on the City of Jonesboro 911 Dispatch official Facebook page, each pairing a Bible verse with imagery.

AG Leslie Rutledge limited her analysis to the four actual posts, since the Establishment Clause analysis is fact-dependent. The four posts were:

• Post 1. Philippians 4:13 ("I can do everything through him who gives me strength. Have a great Day!") paired with a sunrise image of a lone tree.
• Post 2. Psalm 23:4 ("Even though I walk through the valley of the shadow of death I will fear no evil...") paired with the U.S. Marine Corps seal and Marines at attention at a funeral, captioned "Semper Fidelis, Marines #HonortheFallen."
• Post 3. Matthew 5:9 ("Blessed are the peacemakers, for they shall be called sons of God.") paired with a coffee mug image wishing a peaceful Sunday.
• Post 4. Attributed quotation of Matthew 11:28-30 ("Come to me, all who labor and are heavy laden, and I will give you rest...") with a coffee mug, present, and flowers, captioned "Have a Beautiful and Blessed Day."

The AG worked through the Supreme Court's three-test framework (Lemon, endorsement, coercion). She came down on the side of the coercion test as the proper standard, citing the original meaning of the Establishment Clause and the trajectory of recent cases including Town of Greece v. Galloway in 2014. Under that test, government action violates the Clause only when it compels or coerces religious observance, backed up (under the strict version) by force of law or penalty. None of the four posts came close to that. Posting Bible verses on a Facebook page does not force anyone to view them or to engage in religious practice.

The AG then ran the four posts through the other two tests for completeness. Under the Lynch v. Donnelly endorsement test, Posts 1 (inspirational), 2 (honoring Marines), and 3 (peacemaker imagery for emergency responders) would survive because a reasonable observer would see them as having predominantly secular purposes. Post 4 would likely fail; the attributed quotation of Jesus inviting people to come to him for rest has no secular framing, and a reasonable observer would likely read it as endorsement. Under the Lemon test, the same pattern holds: Posts 1 and 2 are clearly constitutional, Post 4 is clearly unconstitutional, and Post 3's fate depends on whether its primary purpose was secular (promoting emergency responders as peacemakers), which the AG could not determine on the limited facts.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Three tests, no clear winner

The Establishment Clause prohibits Congress (and, via the Fourteenth Amendment, the states under Everson v. Board of Education) from "respecting an establishment of religion." Over 70 years, the Supreme Court has applied three different tests:

• The Lemon test (1971). A government action violates the Establishment Clause if it lacks a secular legislative purpose, has a primary effect that advances or inhibits religion, or fosters excessive government entanglement with religion. The Court has at times described Lemon as merely a "helpful signpost" (Hunt v. McNair; Mueller v. Allen), and Eighth Circuit case law (Roark v. South Iron and Plattsmouth) treats Lemon as better suited to challenges to statutes and policies than to one-off government actions.
• The endorsement test (Justice O'Connor in Lynch v. Donnelly). A government action violates the Clause if a reasonable observer would conclude it communicates a message of government endorsement or disapproval of religion.
• The coercion test (Lee v. Weisman; Town of Greece). A government action violates the Clause if it coerces a citizen into participating in religious observance. Direct coercion (force of law plus a penalty) is universally accepted; indirect coercion (peer or social pressure) may apply primarily in the school-children context.

The AG's view was that Town of Greece in 2014 marked a notable shift toward the coercion test and away from both Lemon and the endorsement test. She acknowledged that no test commands a clear majority and that lower courts apply different standards in different contexts.

Arkansas's parallel constitutional provision

The AG flagged Ark. Const. art. 2, § 24, which uses a non-coercion-style formulation: "No man can, of right, be compelled to attend, erect, or support any place of worship; or to maintain any ministry against his consent. No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given, by law, to any religious establishment, denomination or mode of worship, above any other." That formulation aligns more closely with the coercion test than with the strict separationist Lemon or endorsement frameworks.

Why only the four posts could be analyzed

The AG declined to give a generic yes/no answer to the broader questions because the Establishment Clause analysis depends on context and content. A municipal department posting Bible verses on Facebook is not categorically forbidden or categorically allowed. A post-by-post analysis is the only honest answer.

The AG also assumed for argument that the posts were "government action" within the meaning of the First Amendment. (The First Amendment only restricts government action, so private speech is not at issue.)

Common questions

Q: Can a city department in Arkansas post a Bible verse on its official Facebook page?
A: The AG said it depends on what the post says and what observers would understand it to mean. Under the coercion test (which the AG argued is correct), almost any post would be fine because Facebook posts do not coerce anyone. Under the endorsement test, a post that primarily promotes religion (rather than using a religious quotation in a secular context) is constitutionally vulnerable. Under Lemon, the post's primary purpose has to be secular.

Q: What kind of religious post would clearly cross the line?
A: An attributed quotation of Jesus inviting people to come to him, paired with a generic "Have a Beautiful and Blessed Day" caption, lacks any clear secular framing. The AG said that post (Post 4) would likely be struck under the endorsement test and the Lemon test, although it could survive the coercion test.

Q: Why does the test matter so much?
A: The coercion test asks whether someone is forced to participate. The endorsement test asks how a reasonable observer would read the message. The Lemon test asks whether the action has a secular purpose and effect. The same post can pass one and fail another. The AG warned that the Supreme Court has not chosen, so the analysis must consider each.

Q: What about a Bible verse on a city's digital sign on the side of the road?
A: The AG did not opine on broader hypotheticals. But the analysis would be similar: under the coercion test, a stationary sign that no one is forced to read is unlikely to violate the Clause. Under the endorsement test, the analysis turns on what a reasonable observer would understand.

Q: Does it matter that the post is on an official city page rather than a private employee's page?
A: Yes. The First Amendment only restricts government action. If the page is presented as official, the posts are attributable to the government. A private employee's personal Facebook page (clearly identified as such) is private speech and is not subject to the Establishment Clause.

Q: Could a citizen sue the city over Post 4?
A: A citizen with proper standing could bring an Establishment Clause challenge. Whether the citizen would win depends on which test the court applies and how the court reads Post 4 in context. The AG's analysis suggests the city would lose under the endorsement test and Lemon, but win under the coercion test.

Citations and references

Constitutional provisions:

• U.S. Const. amend. I (Establishment Clause)
• U.S. Const. amend. XIV (incorporation against the states)
• Ark. Const. art. 2, § 24 (Arkansas religious-liberty provision)

Cases:

• Everson v. Bd. of Education, 330 U.S. 1 (1947) (incorporation)
• Lemon v. Kurtzman, 403 U.S. 602 (1971) (three-prong test)
• Hunt v. McNair, 413 U.S. 734 (1973) (Lemon as "helpful signpost")
• Lynch v. Donnelly, 465 U.S. 668 (1984) (endorsement test)
• County of Allegheny v. ACLU, 492 U.S. 573 (1989)
• Lee v. Weisman, 505 U.S. 577 (1992) (coercion in school graduation)
• Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993)
• Mueller v. Allen, 463 U.S. 388 (1983)
• Van Orden v. Perry, 545 U.S. 677 (2005)
• Town of Greece v. Galloway, 134 S. Ct. 1811 (2014) (legislative prayer; coercion focus)
• Warnock v. Archer, 380 F.3d 1076 (8th Cir. 2004)
• ACLU Nebraska v. City of Plattsmouth, 419 F.3d 772 (8th Cir. 2005) (en banc)
• Roark v. South Iron R-1 School Dist., 573 F.3d 556 (8th Cir. 2009)
• Doe ex rel. Doe v. Elmbrook Sch. Dist., 687 F.3d 840 (7th Cir. 2012)
• Am. Atheists, Inc. v. Port Auth. of New York and New Jersey, 760 F.3d 227 (2d Cir. 2014)
• Koenick v. Felton, 190 F.3d 259 (4th Cir. 1999)
• Utah Hwy. Patrol Ass'n v. Am. Atheists, Inc., 132 S. Ct. 12 (2011)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Official summary

Is it permissible to post verses, quotes or other sayings from the Holy Bible or any religious book on a Facebook page that is presented as a city-run department? Q2) Is it permissible to post or display verses, quotes or other sayings from the Holy Bible or any religious book on any city-operated or controlled media or property? Q3) Is it permissible for a city employee to post, display or communicate to the public using city-operated media any verses, quotes, or other sayings from the Holy Bible or any religious book while utilizing city resources or while acting in their capacity as a city employee? Q4) Is it permissible for a city employee to post, display or communicate to the public using city-operated media any solicitation to pray, either generically or specific to a particular religion or denomination, while utilizing city resources or while on duty? Q5) Is it permissible to post or display any messages promoting religion, either specifically or generically, in any of the above-listed situations? RESPONSE: Although these questions are posed generally, the permissibility of a post or other communication will depend significantly on the particular facts and circumstances surrounding the communication. The analysis set forth in the opinion is limited to the four Facebook posts that prompted the opinion request. Depending on which of three possibly-applicable Establishment Clause tests is applied, all or some of the posts were permissible. See the opinion for further detail.

Original opinion text

The full text of this opinion is approximately 15 pages of doctrinal analysis covering the Establishment Clause's history, the three competing tests, and post-by-post application to four Jonesboro 911 Dispatch Facebook posts. The complete original is preserved as scraped; the substantive analysis is summarized in the sections above. See the linked landing page for the official source.

Opinion No. 2015-098
March 21, 2016
The Honorable John Cooper
State Senator
62 CR 396
Jonesboro, Arkansas 72401
Dear Senator Cooper:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
I am writing in response to your request for an opinion. As background for your
questions, you explain that the following questions "involve[] city-operated and/or
owned media and communication channels, including those such as television
channels, Facebook pages, Twitter accounts, websites and digital signs." With this
background in mind, you ask the following five questions:

1. Is it permissible to post verses, quotes or other sayings from the
   Holy Bible or any religious book on a Facebook page that is
   presented as a city-run department?
2. Is it permissible to post or display verses, quotes or other sayings
   from the Holy Bible or any religious book on any city-operated or
   controlled media or property?
3. Is it permissible for a city employee to post, display, or communicate
   to the public using city-operated media any verses, quotes, or other
   sayings from the Holy Bible or any religious book while utilizing
   city resources or while acting in their capacity as a city employee?
4. Is it permissible for a city employee to post, display or communicate
   to the public using city-operated media any solicitation to pray,
   either generically or specific to a particular religion or denomination,
   while utilizing city resources or while on duty?
5. Is it permissible to post or display any messages promoting religion,
   either specifically or generically, in any of the above-listed
   situations?
   RESPONSE
   Although your questions are posed generally and without reference to a specific
   context, it is my understanding that they have arisen from the context of a city
   employee posting at least four Facebook posts on an official Facebook page for a
   City of Jonesboro department. The posts contained certain Bible verses and other
   religious-themed statements. Because the legal analysis for your theoretical
   questions may heavily depend on the specific context and facts from which they
   arise, I must limit my analysis to the particular Facebook posts that triggered this
   inquiry.
   [Substantive doctrinal discussion of the Establishment Clause history and three tests follows in the source text.]
   III. Conclusion
   To summarize, the key to addressing your questions is determining which of the
   three competing tests a court would use. While I cannot be certain how a court
   would attempt to sift the case law on this subject, I can offer some conclusions on
   how the posts would fare under each test. Under the coercion test, all the posts
   would be permissible. Under the endorsement test, three posts would be
   permissible, and one would be impermissible. Under the more stringent Lemon
   test, two posts would be permissible, one would be impermissible, and I lack
   sufficient facts to assess one of posts. In my opinion, the Establishment
   Clause's text and history (as well as the most current case law) point toward
   the coercion test as the appropriate test. If this test were used, all the posts
   would be permissible.
   Sincerely,
   LESLIE RUTLEDGE
   Attorney General