[co-authors: Rachel Stuckey, Erik Lampmann]*
Social media has transformed the ways legislators and their staff interact with constituents. Through social media platforms, our elected officials share insights into the legislative process, communicate with constituents, and even provide life-saving updates during times of crisis. Politicians can also use social media to grow their following and influence public discourse—as when a Texas state senator leveraged social media to turn her filibuster into a national social media event.
Social media use by elected officials isn’t without legal, political, and reputational hazards, however. In part to mitigate against the risks posed by social media gaffes, federal agencies, associations of elected officials, and social media companies themselves have all published model social media policies or addressed specific challenges politicians can face while spreading their message online. At the same time, few resources provide a comprehensive catalogue of the myriad risks elected officials and their staffs may encounter on social media platforms.
Below are best practices to help public officials reap the benefits of social media while guarding against embarrassment or liability for improper online activity. While far from a definitive guide to how legislators and their staff should behave online, these practices can help elected officials and the people who advise them to navigate the diverse legal and ethical quandaries of social media.
- This should go without saying, but take care not to post offensive photos or content.
One hasty social media post has the potential to destroy an entire political career. Take for instance the infamous case of former congressman Anthony Weiner (D-NY), who tweeted a sexually suggestive photo to a young college student from his public account. Weiner initially claimed his account had been hacked, joking about the incident on Twitter. Soon more lewd photos and emails came to light, and Weiner faced immense pressure, even from then-President Obama. Just three weeks after the post, Weiner resigned citing the scandal as an impossible distraction.
Social media scandals plague public officials across party lines and levels of government. Incidents range from Rep. Labrador (R-ID) tweeting the phrase “Me likey Broke Girls” in reference to a televised promo for CBS’ “2 Broke Girls” depicting a stripper pole, to former Gov. Jack Markell (D-DE) accidentally linking a racy photo of a model named “Precious Little” in a post about public education. Public scrutiny is not limited to posts made while in office, as one Virginia Board of Education member learned when his past racist, vulgar tweets from years earlier surfaced.
To prevent these mistakes, elected officials should implement oversight policies that include multiple steps of review before any post goes live. A review mechanism helps to catch embarrassing typos, but more importantly, provides another filter through which staff can evaluate the tone and attempted humor of a post, which can easily fall flat to online readers.
- Choose wisely when delegating access to your social media accounts.
As any number of embarrassing tweets and misspellings illustrate, social media blunders often stem from user-error. The risks are compounded by elected officials’ tendency to delegate social media tasks to their more junior staffers.
Before building out their social media brand, elected officials should first decide which staffers may access their accounts and post on their behalf. Then, they should define these responsibilities in a comprehensive social media policy. To prevent staffers from accidentally posting on the public account what was meant for their private social media sites, consider a rule that staffers may only post from designated devices or from certain physical locations, such as the office. Social media platform integration services like Hootsuite are also great tools for streamlining the process of posting across different sites and reducing the potential for user-error.
Even users who employ careful protocols to moderate social media access may be subject to cyber-vandalism, which occurs when an outside actor takes unauthorized control of a social media account. In that case, the elected official’s staff should acknowledge the inappropriate post, apologize when necessary, and alert followers to the incident. This toolkit provides helpful guidance on how to respond to a cyber-vandalism attack while maintaining public trust.
- Think twice about what you retweet, like, or share.
Despite the strong temptation to share viral content, elected officials should pause before doing so on their social media accounts. Re-posting content from other pages can potentially expose legislators to legal liability for copyright infringement or defamation. Reputational effects are also at stake because followers tend to equate re-posting with endorsing the post itself or the post’s creator. This was the case for Nebraska State Sen. Bill Kintner (R-2), who resigned after heavy criticism of his retweet of a radio host mocking Women’s March participants.
Courts have only recently confronted the question of whether liability should attach to social media users who share posts containing copyrighted or defamatory content. The United States District Court for the Southern District of New York broke new ground in 2018, for instance, when it suggested in Goldman v. Breitbart News Network that embedding copyrighted photos in online news articles may count as displaying that content for purposes of the Copyright Act. And while elected officials who post defamatory statements may be liable for that content under state libel law, U.S. courts haven’t yet assigned liability to users who simply retweet or “like” defamatory posts. Courts in Switzerland and the United Kingdom have been less reluctant to extend liability to this type of “shared” content.
Legal liability aside, elected officials regularly face criticism from their followers for (1) sharing posts containing offensive content or (2) posts from accounts with offensive names. The general public holds legislators accountable for the posts they share, including light-hearted memes and photos. Similarly, elected officials have been shamed for “liking” controversial pages. To minimize risk, elected officials should only share posts from established institutions, respected online media outlets and other reputable sources.
- Establish a clear, viewpoint neutral policy for deleting offensive comments and avoid blocking users with whom you disagree.
Recent developments in First Amendment law suggest elected officials may not lawfully block constituents from accessing the elected officials’ social media accounts because of differing political views. Legislators should follow these developments closely and err on the side of permitting commentators to continue engaging with their social media accounts, however annoying they may be.
The most high profile of these cases saw President Donald Trump sued for blocking seven journalists from his Twitter account. In Knight First Amendment Institute v. Trump, the U.S. District Court for the Southern District of New York held that by holding out his Twitter account as an avenue for public engagement and by using it to release major policy announcements, the President made his account a “designated public forum.” Under the First Amendment, state actors like President Trump cannot block speakers from accessing a “designated public forum” because of their political views. The outcome in Knight Institute has already begun to influence other jurisdictions, too. In January 2019, the Fourth Circuit Court of Appeals cited Knight Institute when it upheld a district court ruling sanctioning a Board of Supervisors member in Northern Virginia who blocked a constituent from her page. An Arizona congressman and the Governor of Maryland faced similar suits but agreed to unblock their constituents rather than litigate.
One workaround for elected officials who want to maintain decorum on their pages without running afoul of the First Amendment is to rely on each social media platform’s community standards. Facebook, Twitter, Instagram, and Snapchat all have community standards and police obscene or profane content themselves. Enforcement by platforms is imperfect, however, and likely won’t capture every objectionable post. Should elected officials want more control over what happens on their pages, they can develop viewpoint neutral comment moderation policies, post those policies clearly, and train staff to enforce them professionally and dispassionately.
Also, legislators and their staff should refrain from using their private personal accounts to engage with constituents. For example, politicians should avoid soliciting their Facebook friends’ input on proposed pieces of legislation. When elected officials hold out their personal social media accounts as avenues for the public to engage with them, they may be creating “designated public forums.” Under the First Amendment, elected officials can only exclude members of the public from these forums under certain conditions. Thankfully, legislators and their staff can address these concerns cheaply and head on. One commentator provides a helpful analogy on this point—that of a business owner guarding against attempts to pierce the corporate veil between companies she owns. Just as that business owner should not blur the lines between her various companies, politicians with multiple accounts should be wary of commingling official and personal affairs on social media.
- Maintain a wall between your campaign and official social media accounts.
Congressional ethics regulations prohibit elected officials from using government resources for campaign purposes. While a de minimis amount of overlap is allowed, generally official staff cannot conduct any campaign activity; similar rules apply to the use of government funds and office technology. The easiest way to avoid an ethics violation is therefore to use separate social media accounts for campaign activities and official activities.
Failure to keep campaign and official accounts separate may result in significant fines or other sanctions by ethics committees at the state or federal levels. For instance, a Washington state representative received a fine of more than $220,000 for embedding state-funded videos on her campaign Facebook page. The Office of Congressional Ethics (OCE) has recommended sanctions against an elected official who posted photos and videos captured at the Capitol on campaign accounts. To be safe, official staffers should never manage campaign accounts.
Candidates frequently gain large social media followings during campaigns, but they must nonetheless start over with new accounts when they become elected officials. Queens Congresswoman and social media influencer Rep. Alexandria Ocasio-Cortez (D-NY) made headlines when she directed her 1.7 million Instagram followers to a new account created for official House business. Similarly, Rep. Dan Crenshaw (R-TX) tweeted a request for his old followers to switch over to his official account after his election, remarking “Thanks Ethics Rules”. Creating a fresh account that designates congressional membership in the username or bio is the best way to comply with ethics regulations.
- Whenever possible, don’t delete your public posts.
Whether record-keeping laws require the preservation of social media posts remains unclear. Federal officials are subject to transparency regulations requiring the archiving of certain materials, including—under the Presidential Records Act—storing President Trump’s tweets, whereas state Sunshine Laws may or may not require archiving past posts. In an abundance of caution, elected officials should therefore think carefully before deleting controversial messages or regularly purging old posts.
Each legislator should also review their own jurisdiction’s laws to ensure compliance since regulations vary widely. For example, California imposes strict public records requirements on elected officials, including mandating record-keeping at all public meetings. The California Supreme Court has gone so far as to hold that a legislator’s private emails discussing public affairs were subject to disclosure as a “public meeting”—a rule which might be applied to social media posts in the future. Texas similarly includes social media posts within the state’s definition of public records. On the other hand, Delaware excludes most emails sent by legislators to one another or to constituents from the definition of public records. At the federal level, the Executive Branch through National Archives guidance has cautioned agency officials to treat social media as any other federal record subject to preservation.
In addition to legal liabilities, deleting controversial public posts can cause reputational harm to legislators. Apologizing thoughtfully rather than deleting embarrassing content can prove more effective in preserving follower loyalty than deleting the offending post. Plus, deleting an offensive post won’t scrub it from the internet. Journalists will likely have already take screenshots, and watchdog groups like ProPublica actively monitor posts which politicians or candidates for public office have deleted.
- Keep an eye out for new developments in the field of social media law.
As these best practices illustrate, social media law is full of open legal questions. Many of these difficulties stem from the challenge of mapping analog legal doctrines onto the digital terrain of the internet. One novel issue is how to properly interpret the Speech and Debate Clause in light of elected officials’ use of social media for legislative purposes.
The Speech and Debate Clause of the U.S. Constitution and similar provisions in 43 state constitutions insulate elected legislators from liability for actions undertaken as part of what the Supreme Court in Dombrowski v. Eastland called “legitimate legislative activity.” While the Speech and Debate Clause was originally thought of as a way to encourage robust debate in Congress, since the Brewster case in 1972, it is now interpreted to encompass more than floor speeches by legislators. In Gravel v. U.S., the Supreme Court held that Speech and Debate protections extend to acts undertaken by legislators as “integral part[s] of the deliberative and communicative processes by which [they] participate in committee and House proceedings.”
In the years to come, elected officials could argue that some social media posts fall under the ambit of these “deliberative and communicative processes.” Doing so would require persuading courts on policy grounds that the current work of legislators extends far beyond the Capitol and requires far-reaching immunities. If these arguments succeed, then elected officials would earn some form of Speech and Debate Clause protection for online activity. While drastic changes in the Speech and Debate Clause’s application are unlikely, the Clause is drawing increased attention from stakeholders. The National Conference of State Legislators started assembling resources on the scope of legislative immunity as more state governments and academics become interested in the topic. One of these scholars, Michael Shenkman, describes a new approach in an article in the Yale Law & Policy Review. He argues that elected officials should be granted absolute immunity for traditional legislative tasks and qualified immunity for other official acts, including communicating with constituents, because this two-tiered structure reflects the breadth of activities politicians undertake today.
While courts are unlikely to implement these creative visions for the Speech and Debate Clause in the near future, discussions surrounding the proper limits of the Clause exemplify the interpretive puzzles potentially facing social media law practitioners in the future.
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For politicians and their staffs today, social media is a veritable minefield. From racy photo leaks to viral campaign hashtags and lawsuits over blocking followers, social media platforms offer elected officials access to a massive audience—but at a price. While far from all-encompassing, these best practices chart a path forward for elected officials in their social media use, fostering public engagement on their accounts while avoiding public embarrassment.
*Summer Associates
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