As social media continues to expand as a means for both individual and governmental communication, it is important to understand the extent of the protections of the First Amendment that may apply to communications between citizens and the government on these platforms. Questions about the degree of control governmental officials and the owners of the platforms can lawfully exert are ongoing. For example, a federal appeals court held that then President Donald Trump was not allowed to block critics from his Twitter account because he used his twitter account as a means of communication in his official capacity as a public official. Blocking the critics based solely on their disagreement with Trump’s political positions was held to be a violation of their First Amendment rights because doing so prevents them from tweeting at the President or commenting on his threads.
Social media companies themselves, such as Facebook and Twitter, are permitted to regulate users and their content, however. The First Amendment does not prevent these private entities from regulating their users’ speech. The social media sites generally have terms and conditions to which users must agree before using the platform, and these conditions include permissions authorizing the companies to remove content and users when they have violated the agreement.
Thus, public officials acting in their public capacity cannot block users on social media platforms at will, but the sites themselves may do so based on their terms and conditions of use. But where does this leave other governmental entities controlling Facebook pages? What rights do, a municipal official, police department or volunteer fire company have to regulate posts on their Facebook page?
Federal courts have deemed social media platforms used by public officials or a public agency for official communications to be “limited purpose public forums” under the First Amendment. The government actor may impose “content neutral” polices such as deleting profanities or pornography and may limit discourse to the topic at hand. However, the government actor may not engage in “viewpoint discrimination” by deleting posts or blocking users solely because the users disagree with the government actor’s point-of-view.
Based on the guidelines laid out by the court in the case involving President Trump’s Twitter, the first question is asking whether the municipal official, police department or fire company is a public official or public agency. The municipal police department is an agency of the municipality. While the volunteer fire company’s primary responsibility is in firefighting and disaster assistance for a particular municipality and locality, they are frequently independent nonprofit corporations which are tax-exempt under the Internal Revenue Code. There may be some instances, however, where a volunteer fire department may be deemed a “state actor” subject to liability for First Amendment violations based on the level of public control and public funding.
Since most volunteer fire companies are unlikely to be considered public entities, those managing the organizations and their online presence are not deemed public officials. The legal reasoning underlying the court’s handling of President Trump’s case, therefore, would not prevent the companies from regulating the content on their own Facebook pages. Similarly, government agencies maintaining Facebook pages are not permitted to delete offensive posts or users on the page because doing so could be “viewpoint discrimination,” thereby constituting a First Amendment violation. Unlike a municipal police department-a volunteer fire company is independent from the local government although it is considered to perform a governmental function in promoting the public safety of the residents of the community
As a manager of a Facebook page, the entity is still not the head of the platform. Thus, although they may have their own page, they are not legally categorized as a platform the way Facebook’s company is. Instead, they operate as an independent entity that simply operates a page. The First Amendment generally protects individuals from government regulation of speech, not private regulation of speech. As such, a volunteer fire company’s regulation of the content and users of their own Facebook page is considered permissible provided it is not discriminatory or in violation of public policy. The police department would have the right to regulate content on its Facebook page or website so as to protect the safety of officers and others.
As your organization adapts to emerging forms of communication and navigates the use of social media, understanding the intersection of regulation and the First Amendment becomes crucial. To discuss your organization’s rights and responsibilities, email Steve Feinour at email@example.com or Josh Bonn at firstname.lastname@example.org.