Public officials and government entities use social media such as Facebook, Twitter, and Instagram to broadcast community events, make public service announcements, or issue policy statements. Use of social media for official communication implicates freedom of speech issues under the First Amendment to the United States Constitution. Public officials and government entities may avoid liability for such communications by adopting and enforcing social media policies.
1. Adopt a reasonable, viewpoint-neutral social media policy.
Government maintained social media pages which permit public comments are public forums under the First Amendment. The First Amendment permits the creation of public forums for limited purposes, such as use by certain groups or for discussion of certain subjects. It is critical to adopt a social media policy because, in the absence of such policy, any restriction on speech (e.g., deleting comments) will likely violate the First Amendment. A social media policy allows the government to restrict public comments to current issues of governance and to impose reasonable decorum requirements.
2. Uniformly enforce the social media policy.
Once a social media policy is established, the governmental entity must respect the lawful boundaries it has set for itself. Regulation of speech that falls within the designated topics will likely be impermissible. The governmental entity should monitor the forum and delete comments that violate its social media policy or that are clearly off topic, such as spam or personal attacks.
3. Respect the right to free speech—including unfavorable criticism.
Speech may not be disfavored because it offends. A federal court in Virginia recently held that a county supervisor violated the First Amendment by deleting public comments from her Facebook page. The court explained that “the suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards. By prohibiting [a citizen] from participating in her online forum because she took offense at his claim that her colleagues in County government were unethical, she committed a cardinal sin under the First Amendment.”
4. Avoid personal liability.
Public officials who use social media for official purposes must adopt viewpoint-neutral policies to moderate public comments. The county supervisor discussed above was personally liable for the First Amendment violation because she used her Facebook page for official purposes, such as communicating her activities as a public official to her constituents. She did not have her own social media policy and she opted out from the county’s social media policy.
5. Comply with the Right-to-Know Law and applicable record retention polices.
Social media posts that communicate official government messages are “records” under the Right-to-Know Law. The Office of Open Records recently held that a borough mayor was responsible to publicly disclose portions of his Facebook page, after a citizen alleged that the mayor deleted public comments related to a community project that he did not agree with. Government maintained social media pages should be maintained like any other public record pursuant to the entity’s applicable record retention policy.
Josh Bonn is a member of Nauman Smith’s municipal law practice group. He counsels local municipalities on the Right-to-Know Law. Please contact Josh for more information on social media policies for government maintained social media pages. This update is not legal advice and should be used solely for educational purposes.