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Balancing Social Media and the First Amendment

​Municipalities use Facebook pages, Twitter feeds, and even Instagram stories to share information with their residents. Elected officials use the same platforms to run for office and, once in office, to communicate with constituents.

Given the scope of social media activity, many municipalities have adopted social media rules and policies to regulate it. These rules and policies raise difficult questions. When is it permissible to delete objectionable comments on social media? May the municipality ban especially disruptive users? Are social media accounts controlled by councilmembers considered part of the municipality's official communications?

Answering these questions can be a complex matter and should be supported by consultation with an experienced attorney. The First Amendment's guarantee of freedom of speech serves as one pitfall in this area.

The First Amendment to the United States Constitution states that "Congress shall make no law … abridging the freedom of speech, or of the press." The Fourteenth Amendment, adopted at the end of the Civil War, extends this prohibition to apply to state and local governments. When Twitter, a private company, deletes a tweet for violating its terms of service, the First Amendment is not implicated. But when a municipality deletes a post or bans a user from its social media platforms, the First Amendment does apply.

The First Amendment limits municipal ability to fully control its social media environment. Many options available to private actors are denied to municipal governments. With social media, the municipality acts in multiple roles — as a government regulator, communicator and moderator, among others. Balancing those roles is a difficult task.

Moderating social media user comments

When a municipality creates a social media account, it has also established a forum. "Forum" derives from the Latin word for a marketplace or public square, and in ancient Rome, the forum was the place of assembly for political activity. In the First Amendment context, a forum is a place, either physical or virtual, where the government invites or allows the public to assemble for purposes of speaking about matters of public concern.

Case law recognizes three types of forums under the First Amendment. First, the open or traditional public forum is one that has been available for expression throughout history. The category includes places like sidewalks, parks and town squares. In these places the government may impose only very limited regulations of speech.

Second, the limited public forum is a place wherethe government allows expression for a particular purpose or on specific topic. A public hearing at a council meeting provides a familiar example. In a public hearing, the municipality may impose time limits, relevancy requirements, decorum rules and other viewpoint-neutral restrictions on speech.

Finally, the non-public forum is not made available for public expression. Examples include military bases, police and fire stations, and employee offices in government office buildings. In those forums, governments may severely limit or even prohibit public expression.

Although these rules were developed for physical places, the courts have applied the same concepts to virtual places. A municipality might establish an open public forum on a social media platform by inviting or allowing open comment on any topic of concern to its residents. The same platform could be used also to create a limited public forum by the municipality clearly stating its purpose and the requirements for public participation.

The model social media policy prepared by the International Municipal Lawyers Association suggests including this language on social media platforms to clarify that the forum is limited:

"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. We encourage you to submit comments that are on topic, but please address your comments to the specific topic(s) discussed. This is a forum limited to the specific topics identified and raised by the [municipality]. Users who submit content to this site agree they have read, understand, and agree to the following terms and conditions by virtue of such use."

The municipality may then impose viewpoint-neutral terms and conditions for comment, which may prohibit — for example — profanity, threats, commercial solicitations or racist comments.

Municipalities should generally take care to avoid establishing open forums on its social media platforms. Instead, they may consider disabling comments entirely. If they allow comments, they should include language and rules that creates limited public forums. Even for limited public forums, however, the municipality should consult with an attorney in drafting the rules. For example, courts have found that deleting comments that criticize the municipality or its individual employees violates the First Amendment, even in a limited public forum.

Personal accounts operated by elected officials

When an elected official operates a personal social media account, the critical question is whether that account becomes a public forum. In a 2019 case, Davison v. Randall, the federal Fourth Circuit Court of Appeals, which has jurisdiction over South Carolina, held that a member of a county council used her personal Facebook page in a way that created a public forum.

Although the councilmember had established and operated the page in her personal capacity, it listed her official county phone number, email address and web address. Most of her posts related to her work and position as a member of the council. She used her personal page to notify the public about upcoming council meetings, the subjects to be discussed during meetings and significant public safety issues. In one post, the councilmember said she wanted "to hear from ANY … citizen on ANY issues, request, criticism, compliment, or just your thoughts."

The case arose when the councilmember deleted comments on her page that were highly critical of the local school board. The councilperson testified that the deleted posts accused the school board members and their families of having illegal conflicts of interest and taking kickbacks. Although the councilmember said she had no opinion on whether the accusations were true, she objected to having her page used to make them. Given her prior use of her page, the court concluded that this page was a public forum and subject to the First Amendment. Therefore, the councilmember violated the First Amendment when she deleted comments based on the viewpoint they contained.

If an elected official's personal social media account is determined to be a public forum, then the account is subject to all of the moderation rules discussed above. Elected officials should be aware that their use of even personal social media accounts may implicate the First Amendment and limit their ability to moderate comments on those accounts.

Be willing to ask questions

The principle of freedom of speech means that social media conduct is significantly more complicated for a governmental body than for other entities. Determining the line between an appropriate use of a channel, or an appropriate discussion of a matter of public concern, can be difficult to navigate. When questions arise on the steps to take, consultation with legal counsel is key.