Supreme Court Decision Affects Local Governments on Social Media
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.
Adopt and Review a Social Media
Policy
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."
In case you haven't heard, ELGL is a
fun and fast-growing organization aiming to connect, communicate, and educate
about local government. Give them a follow on Twitter @ELGL50, and check out
their blog for more information about important local government topics.
Post Authored by Dan Bolin, Ancel Glink
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