Author’s note: This article doesn’t address the topic of agencies seeking to restrict or discipline employees for potentially inappropriate posts on the employee’s personal social media account. Such First Amendment issues involve a “matter of public concern” analysis under Connick v. Myers (103 S.Ct. 1684 (1983)).
Whether you individually choose to subscribe to social media sites such as Facebook or Twitter, many public safety agencies have found that maintaining a department Facebook page can be an effective and beneficial way to communicate with the public they serve.
Unfortunately, as with any good thing, some people abuse these forums with inappropriate posts. Recently, there seems to be a growing number of individuals and groups such as the American Civil Liberties Union (ACLU) who are threatening agencies with litigation if the agency deletes or blocks posts. Some of these threats cite instances where agencies have purportedly paid thousands of dollars to avoid such litigation.
Before you go writing checks to these folks, a careful overview of the current law is in order.
Social Media Case Law
Recognizing the law pertaining to the internet is rapidly developing, the U.S. Supreme Court has instructed the lower courts to exercise patience and caution when applying the Constitution to these issues (Packingham v. No. Carolina, 137 S.Ct. 1730 (2017)). Although the Court struck down as overly broad a statute banning all registered sex offenders from subscribing to Facebook, it refused to apply the heightened “strict scrutiny” test under the First Amendment to social media. Instead, it suggested that a lesser level of “intermediate scrutiny” would generally apply to evaluating the government’s interest in narrowly restricting access.
Since that case, only a few federal district courts have published opinions specifically addressing the issue of public entities restricting access to governmentally maintained social media pages. In Davison v. Plowman (247 F.Supp.3d 767 (E.D.Va. 2017)), the court permitted a county attorney to delete inappropriate posts on his official Facebook page because they were deemed to violate terms that prohibited “off topic” posts. Defining the official Facebook page as a “limited public forum,” the court held that the government’s restrictions must only be reasonable.
In Hargis v. Bevin (2018 U.S. Dist. LEXIS 54428 (E.D.Ky. 2018)), the district court went so far as to classify the Governor’s official Facebook page as a non-public forum from which he could limit or even delete unwanted posts. Denying relief to the plaintiff, the court interestingly noted that while the First Amendment may limit the government’s ability to restrict free speech, it doesn’t require the government to listen to everyone who wishes to speak. It further permitted the Governor to block individuals from his official Facebook site since doing so in no way blocked them from Facebook or other social media sites, but only from his own.
In Robinson v. Hunt County (2017 U.S. Dist. LEXIS 217619 (N.D. Tx. 2017)), the court endorsed the Sheriff’s ability to limit the content of posts on the agency’s Facebook page because the Sheriff had expressly stated the site was “Not a Public Forum” and further posted specific restrictions on posts, including a requirement that all users must adhere to Facebook’s own Community Standards Rules.
Recommendations for Agency Facebook Pages
In light of Robinson and other recent cases in this rapidly developing area of technology and the law, it is highly recommended that agencies maintaining official Facebook pages clearly label them with language such as “This is Not a Public Forum.”
Agencies should also clearly post terms and conditions such as:
“The ______ Police Department maintains this page as a source to share news and relevant topics with members of the community. We welcome relevant and appropriate contributions and comments from visitors to this page. The opinions expressed by visitors to this page do not reflect the opinions of the _________Police Department.
The ______ Police Department requires that all posts to this page must adhere to Facebook’s Community Standards Rules and expressly reserves the right to remove or block submissions that contain:
a) profanity and vulgar or abusive language
b) personal attacks or threats of any kind
c) offensive comments that target or disparage any ethnic, racial, or religious group
d) sexual content or links to sexual content
e) sensitive information (for example, information that could compromise public safety or ongoing investigations)
f) spam or links to other sites
g) advocating illegal activity
h) promoting particular services, products or political organizations/candidates
i) infringing on copyrights or trademarks
j) personally identifiable medical information
k) comments not typically related to the particular subject matter being presented.”
While case law supports the right of agencies to maintain social media sites as limited or even non-public forums and impose expressed restrictions on posts, take caution when monitoring posts. It’s critical that deletions and other restrictions be applied equally (O’Brien v. Welty, 818 F3d 920 (9th Cir. 2016)). In other words, if one post advocates the killing of cops and another one advocates the killing of minorities, both must be deleted. Frankly, the courts have even permitted agencies to simply block all posts and maintain a page as a one-way communication forum.
There is little doubt that agency social media pages provide a valuable resource for sharing timely information with the public and allowing agencies to keep a pulse on their increasingly internet-connected communities. Although there will undoubtedly be posts that warrant deletion from these pages, law enforcement agencies should also recognize that such posts from identifiable users may also provide valuable evidence in an ongoing investigation.
As the courts continue to wrestle with social media issues, it is highly likely that the federal courts will grant qualified immunity in the absence of “clearly established” law. Even as the law continues to evolve, such immunity will still likely apply under recent Supreme Court rulings (e.g., White v. Pauly, 580 U.S. ___ (2017)) unless an agency is found to have violated yet-to-be “clearly established” law under the substantially similar circumstances.
The bottom line is that public safety agencies should continue to establish social media pages as long as they are properly labeled, post applicable restrictions and are neutrally applied. While agencies must also consult their own legal counsel for advice, it would be ill-advised to surrender to claims that have no legal authority behind them.