The following is a re-post of an article by Dan Bolin from The Municipal Minute, an Ancel Glink local government blog by Julie Tappendorf...
Excerpt from the ELGL (Engaging Local Government Leaders) Blog: Supreme Court Decision Affects Local Governments on Social Media
Last week's Supreme Court decision in Packingham v. North Carolina recognizes the application of the First Amendment to social media. Today, Dan Bolin and Julie Tappendorf take a closer look at what that means for local governments in a blog post for ELGL (Engaging Local Government Leaders):
The Government Can’t Just Delete Comments it Doesn’t Like
If you see a post you don’t like on your personal Facebook 'wall,' you can just delete or hide it, or just block someone from posting at all. Moderating comments on local government social media sites is very different, however, because of the First Amendment.
The First Amendment provides individuals with the right to engage in protected speech without government interference. If a local government establishes a social media site to communicate with the public about agency business, the First Amendment will apply to the comments and posts made by others on that site. So, the moderator of the agency page cannot simply delete, hide or block posts or people based solely on the content of the message that was posted.
That does not mean that 'anything goes' on government social media sites. Governments can adopt rules on public comments so long as the rules do not implicate protected speech. For example, local governments might ban commercial advertising on its site, prohibit discriminatory comments, and ban all links to third party sites.
However, removing posts that are simply critical of the agency or its activities could be subject to challenge as a violation of the First Amendment. Many governments find it helpful to look at social media moderation along the same lines as moderation of comments at a public meeting – while it is acceptable for the public to criticize and disagree with agency actions, if the speech becomes disruptive, agencies will enforce 'rules of decorum.'
Local governments should put their comment policies in writing and post them on their social media sites (or provide links to the policies on their website) to put the public on notice of the type of comments that will be subject to removal.
Local Government Employees have First Amendment Rights on Social Media
Public employees also have the right to exercise their First Amendment speech rights, to comment on working conditions, and to speak on matters of public concern. As a general rule, however, social media posts that fall more into the category of an “individual gripe” about the employee’s job or supervisor will not be considered protected and could result in discipline and even termination.
By adopting a social media policy, including a comment policy and employee use policy, local governments can manage social media in accordance with the First Amendment, open records laws, open meetings laws, and copyright laws."