Training & Education

What Does Your Lawyer Want You to Know About Social Media?

Online tools have made interacting with the public more convenient, but the legal pitfalls associated with social media have also been exposed.

The benefits of social media have been well documented in the public sector. From soliciting new ideas and opinions on Facebook to sending out key announcements through Twitter, social networks have become vital communication mediums for government agencies.

But while online tools have made interacting with the public more convenient, the legal pitfalls associated with social media have also been exposed. Chief among those concerns are the free speech rights of users, particularly if a government entity deletes comments off its social pages.

Municipal attorneys recommend that agencies refrain from deleting user commentary on official government Facebook walls or Twitter if those pages are open to public posting, which could be construed as a public forum in the eyes of the law. A public forum is a venue open to all types of expression allowed under the First Amendment like parks and streets. However, there is an exception if the speech incites violence or is threatening. In those cases, removing the comments won’t subject an agency to liability on the basis of a First Amendment challenge, according to Christina Checel, senior deputy city attorney of Long Beach, Calif.

But if someone posts a statement damning city services or making a political statement that’s critical of elected officials, it must remain up. That advice may seem cut and dry, but it can get murky when the commentator is an employee of or affiliated with the government agency.

Checel said one of the most important rules of thumb is to decide quickly — preferably before a government social media account is created — who from the agency is allowed to post on the page in an official capacity and draft a policy that explains the vetting process for online communication. 

For most government agencies, public information officers (PIOs) tend to be the most popular choice to post on social media accounts, according to Checel. Done in this manner, individual departments can send a PIO news items to post. For larger entities, departments might choose to send items to department-specific communications personnel.

In a smaller city or county without a PIO, Checel said it’d be wise to appoint a staff member who has a clear channel of communication through a city manager or county administrator. 

Once the appropriate individuals are appointed, then the social media policy should be expanded to define what’s expected of government agency employees regarding personal commentary on the site.

“It is appropriate to have restrictions such as employees are not allowed to post discriminatory or harassing comments on the site,” Checel said. “That’s perfectly acceptable and definitely suggested that an employer does have some boundaries in which to work.”

Patrick Whitnell, general counsel for the League of California Cities, an association that lobbies on behalf of city interests, agreed. 

He said if a city or governmental body is going to have an interactive social interface, it’s paramount to first establish a policy to prevent abusive users from posting inappropriate, offensive and defamatory comments. Then make that policy prominent on Facebook, Twitter and other online mediums.

“As long as you are letting the users know what the ground rules are for being allowed to post comments and you’re making sure when you are enforcing them, that you are staying within the boundaries you’ve created, that’s probably your best way of avoiding a free speech claim,” Whitnell said.

Checel concurred about the need for guidelines, but said they would be tough to enforce on the public. She explained that if government officials were concerned about overzealous community members “trolling” on an official social media page, they may want to set up a limited public forum that prohibits commentary from nonappointed people.

Lack of National Guidance

The issue of government agency employees using their personal social media accounts to post to their public employer’s official social media pages, or even tweeting about something that happens in a public agency, is a growing problem.

Unfortunately for municipal attorneys, there isn’t much case law dealing with social media to rely upon for precedent when addressing some of the privacy and First Amendment claims that may arise from that type of social media use.

Brian Heaton  | 

Brian Heaton was a writer for Government Technology and Emergency Management magazines from 2011 to mid-2015.

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