[author: Jackie Wernz]

A recent Illinois Attorney General opinion addressed an interesting question: Can a public entity delete comments by community members from its Facebook page? Although the public entity at issue was a municipality, the opinion raises a number of interesting issues for public schools. The Attorney General addressed the question under the Illinois Open Meetings Act (the OMA), and found no violation under that specific law. But, if a court were to address the issue under the First Amendment of the federal Constitution, it is less clear that the public body would prevail. Notably, the First Amendment issue – discussed in part 3 below – is relevant even for school districts outside of Illinois. The decision is a warning to public entities, including school districts, across the country to carefully consider the basis of a decision to delete a user comment from a social networking page.

The Facts

The opinion centered around criticism by a community member about a village’s Facebook page. An article in the Daily Herald provides the back story. The page came under scrutiny after the village trustee, who maintains the village’s Facebook page, deleted some items and comments from the page. As with most Facebook “fan” pages, users are allowed to comment on the “wall” of the page, but those comments can be deleted unilaterally by the person who maintains the page. The trustee justified the deletions by pointing to an uptick in negative comments and to complaints by other community members that they were reluctant to subscribe to the Facebook page because of negative comments.

The community member that brought the action, a former part-time police officer of the village, was one of the individuals whose comments were deleted. He complained on his blog about his comments being removed. In one post, he said that he would “be exploring remedies for [the village’s] action of censorship on a ‘supposed’ public site.” The Attorney General request for review appears to have been the individual’s first efforts at finding such a remedy.

An Open Meetings Act Violation?

The community member first argued that the village’s actions violated the Illinois OMA. The Attorney General found that, in Illinois, public entities can post updates on their Facebook page about upcoming meetings without violating the OMA. But it found also that public entities are not required to post such information on their Facebook pages, even if their Facebook page is their only webpage. The Attorney General’s analysis on the latter point hinged on its interpretation of the OMA requirement that, if a public body “has” a website and a full-time staff member maintains that “public body’s website,” the public entity must post public meeting notices on that website. The Attorney General found that a Facebook page is neither “under the control of or maintained by a public body” and so does not fall within the statutory language.

One could argue, however, that creating a Facebook page with the public body’s name and logo and conducting public-body business through that website is tantamount to “having” the website. Moreover, even if the full-time employee is not maintaining the website on Facebook’s servers, his or her actions in posting to and monitoring the website could be described as “maintaining” the public body’s website. Who’s right? I am not necessarily convinced by the counterargument, but public bodies for whom a Facebook page is their only webpage should review the issue before deciding not to post OMA notices on those pages, even after the Attorney General’s opinion.

A First Amendment Violation?

The community member also argued that the village’s actions violated his First Amendment free speech rights. But the Illinois Attorney General does not have jurisdiction over First Amendment claims, and so quickly disposed of the claim because it did not address the OMA. The Attorney General thus did not address the merits of the First Amendment claim, so the question remains whether deleting comments is a constitutional violation.

The question is interesting and there is very little legal authority on the issue. A recent lawsuit was reportedly filed by the Hawaii Defense Foundation against the City and County of Honolulu that will address the issue head on. According to a press release:

The complaint filed in the United States District Court … alleges that the Honolulu Police unlawfully administer their Facebook Fan page in violation of American citizen’s right to free speech. The complaint asserts that the Honolulu police arbitrarily moderate the page by deleting comments and banning users who post or make comments unfavorable to the department. The complaint further asserts that online speech is just as important as a citizen airing their grievance in a public park – just because the speech is virtual, doesn’t mean it is not protected.

So who’s right? To answer the question of whether deleting comments from a public entity’s Facebook page is a constitutional violation, a court will have to first determine what type of “forum” the website is defined as: an “open forum,” a “limited public forum,” or a “closed forum.” There are specific rules as to whether and how speech may be limited depending on the type of forum. Whether the limitations are met will also depend on the specific reasons for deleting the comments and the content of the comments.

In other words, deciding whether there is a violation will require a fact-specific inquiry, and that leads to a lot of uncertainty for public entities with Facebook pages. Suffice it to say, community members whose comments are deleted are seeking recourse in the courts and other venues. Public entities, including public schools, should thus consult with legal counsel before deleting comments from social media webpages to address the constitutionality of that action.

Thanks to Julie Tappendorf who reported on the opinion at her blog Municipal Minute. You can read her post here.