PublicCEO.com - MAY 15, 2014
BB&K Attorney Cambria Smith offers practical answers to common questions about how a public entity manages its social media pages without running afoul of the U.S. Constitution.
You have heard it before and will hear it again: Social media has revolutionized the way the world communicates. Facebook, Twitter, YouTube, LinkedIn, and others are here to stay. Social media pages are the newest and best way to promote yourself, your business, or your city.
While the potential of social media is great, its legal ramifications are often not clear-cut. When a government is responsible for operating a forum where speech occurs and for stopping certain speech from occurring, several First Amendment issues arise. This article provides practical answers to common questions about how a public entity manages its social media pages without running afoul of the U.S. Constitution.
How Are Social Media Pages Related to the First Amendment?
The U.S. Supreme Court uses a structure known as the Public Forum Doctrine to organize public places where speech occurs and define how the government may regulate speech without violating the First Amendment to the Constitution. The Doctrine outlines the following four places where speech occurs:
Traditional public forum: the traditional, quintessential public place for speech, such as a street, park, or sidewalk
Designated (open) public forum: public property that the government has opened to the public as a place for expressive activity generally
Limited public forum: public property opened by the government for expressive activity, but only for a limited purpose, specific groups, or certain subjects
Nonpublic forum: property owned or controlled by the government that is not by tradition or designation a place for public communication
The Supreme Court has yet to classify government social media pages under the Public Forum Doctrine. Still, government social media pages probably are limited public forums. This is because these pages are created only for discussion and information about a certain subject — a government entity or some facet of the government’s business. The government’s pages generally are not open to any expressive activity on any subject.
Once a government entity opens a social media page, the government often wishes to manage the forum. The government may want to curtail users’ speech on the page by deleting comments or closing off discussion completely. The First Amendment dictates how.
May the Government Delete Off-Topic Comments?
The government has a legally recognized right to delete comments that are clearly off topic or spam. In fact, the government should delete off-topic comments to preserve its social media page as a limited public forum.
In a limited public forum, the government may discriminate based on the content of the speech to define the forum and preserve the forum once established. This means the government has a right to delete off-topic comments from its social media pages to preserve the limits it has created for those pages.
The barriers used to define a government social media page must be reasonable and viewpoint neutral. This means that, while the government can delete off-topic comments, it cannot delete only comments that express a particular view. For example, if a government social media page is littered with spam comments about abortion, some of which are pro-life and some of which are pro-choice, the government cannot legally delete only the pro-life comments.
Importantly, when off-topic comments do not promote a social media page’s purpose, the government should delete those comments. By deleting off-topic or spam comments, the government maintains the character of the limited public forum it has created and protects its page from expanding in an unwanted fashion.
May the Government Delete Comments to Promote Decency or Decorum?
It is unclear whether the government has a right to delete inappropriate, profane, or vulgar comments from its social media pages to promote decency or decorum.
The U.S. Supreme Court has not directly addressed the government’s authority to eliminate profanity or vulgarity from limited public forums. Federal appellate courts have addressed analogous situations of preserving decency or decorum in public meetings. The Fourth and Ninth Circuit Courts of Appeals have deferred to government interests and allowed cities to stop indecent speech at city council and planning commission meetings.
The government may argue that it deletes inappropriate comments from its social media page because indecent speech hinders public discourse about government business. However, the government should not delete inappropriate comments because it risks censoring social media users where the threat to government business is much lower than at public meetings. Even deleting comments that are vulgar or offensive creates a risk that the government will suppress speech protected by the First Amendment.
May the Government Create Limited Public Forums that Are Very Narrowly Drawn?
It is unclear exactly how narrow a public forum a government entity could create. The U.S. Supreme Court has recognized limited public forums that have narrow parameters and fine distinctions defining what speech is permitted in the forum.
The Court has indicated that, within a limited public forum, there should be deference to the government to define that forum narrowly. In one case, the Court protected the government’s right to open public property only to commercial advertising and not political advertising.
Governments should create limited public forums that are very narrowly drawn and precisely define the purpose of the social media page, such as tourism or public works projects. Delimiting a government social media page narrowly helps avoid the risk of deleting protected speech because any comment outside the page’s narrow limits would be removed in the interest of preserving the forum for a specific topic.
A tightly defined limited public forum also could help eliminate the open-ended remarks that can lead to inappropriate, profane, or vulgar comments. As a result, the government may face less need to enter legally uncertain territory by deleting comments for decency or decorum.
May the Government Close the Limited Public Forums Created by Its Social Media Pages?
The government has a legally recognized right to delete its social media pages and close any public forums it created on those pages.
Opening a limited public forum on a social media page presents the challenges of encouraging users to participate while still maintaining the forum as delineated. A government could work diligently to build a social media page that creates a limited public forum, yet social media users might still comment in unanticipated ways. In this situation, the government may determine that closing its social media page creates fewer headaches than keeping it open.
The Supreme Court has authorized the government to completely shut down designated or limited public forums. The Ninth Circuit has gone further, giving the government absolute discretion to close a limited public forum “whenever it wants.”
Thus, the government may delete its social media pages and close the public forums it created, should total closure be preferable to managing the social media pages as outlined above.
* This article first appeared on PublicCEO.com on May 15, 2014. Republished with permission.