For many municipalities, social media has cemented itself as critical way to communicate with their constituents, but operating social media accounts comes with legal challenges, especially in its First Amendment considerations.
At the Municipal Association of SC Communications Workshop in October, Association General Counsel Eric Shytle reviewed many critical areas of social media operation with communications professionals from across the state — forum management, developing viewpoint-neutral rules for moderating content and records retention.
Understanding how a municipality is legally permitted to moderate social media comments means understanding what kind of forum it has established.
When governments explicitly open a place of communication to everyone to discuss any topic, it is for constitutional purposes considered a fully public forum.
Shytle gave examples of places such as public parks or courthouse steps, where “since time immemorial, humankind has gathered to express their grievances.”
To reserve the right to moderate, he said, municipalities should intentionally establish a limited public forum — one open to certain groups or subject matter but still public in nature, where regulation must be viewpoint-neutral and reasonable. As a non-social-media example of a limited forum, he offered the comparison of a city council meeting with a public comment period.
“You’re allowing them [the public] to speak, but you’re saying, ‘hey, here’s the rules,” he said. “Public comment opens at 6:30, maybe you have to sign up to speak, maybe you have to be a resident, or you may talk about only the matter that’s in front of you. That’s a classic example of the limited public forum — you’re opening it up at a certain time, in a certain place, for certain purposes.”
Placing a disclaimer on a social media page, he said, can help establish this, announcing that “the purpose of this site is to discuss matters of public interest in and to the municipality as identified and raised by the municipality for discussion. It encourages users to submit comments that are on topic, but askes that they address comments to the specific topics discussed only.”
Cities and towns should establish and make available social media policies that are viewpoint-neutral, Shytle said. Removing any posts that criticize the government would be an example of not being viewpoint-neutral, although they can regulate tone, topic and civility. The rules could prohibit profanity, threats, spam, personal data or commercial solicitations, for example.
Cities should then train employees who moderate comments to enforce them objectively. He noted that simply hiding comments can be less intrusive than deleting them or blocking users, and that deleting content without archiving risks potential violations of public records laws.
Shytle noted that neither the SC Freedom of Information Act nor the Public Records Act were enacted before the advent of social media, but it is still clear that social media activity generates public records, even when content is deleted.
“My view is that you would fit [the content] in by analogy,” he said. “You could say, let’s look at the state’s General Records Retention Schedules for municipalities. Is it general housekeeping files? Is it general correspondence? You delete it when not needed. Is it stuff about public events? The rule is five years. Is it policy-related? It’s permanent. Hopefully we’ll get more guidance on this.”
For those who remove or hide content, Shytle said, it’s critical to preserve screenshots and logs of what was removed with reason for the removal stated, and to train staff on the legal need for taking these steps so that they can provide consistent and well-informed enforcement.