February 28, 2013 By Brian Heaton
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.
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.
Sheila Gladstone, principal attorney with the Lloyd Gosselink law firm in Austin, Texas, said there have been some developments in social media law during the last few years, but mostly in the private sector. For example, she said the National Labor Relations Board (NLRB) has “harsh restrictions” on the type of policies an employer can have regarding infringing on employee rights.
The problem for governments is that the National Labor Relations Act doesn’t apply to the public sector.
In a fictitious example, Gladstone explained that if a city manager’s administrative assistant sent a tweet to her personal followers — including co-workers — that said “My boss is such an idiot, he walked into a wall at work and bumped his head and blamed someone else for it,” there might be cause for disciplinary action. It would depend on if the city manager felt that tweet was disrespectful, caused embarrassment and breached confidentiality.
Is that an issue worth firing someone over? Gladstone said deciding that isn’t a legal issue, but if action was taken against that employee and she brought a lawsuit claiming a violation of her First Amendment right to free speech, the employee’s argument likely wouldn’t hold water.
In that specific situation, Gladstone explained that the speech is not protected by the Constitution because cities have more rights to tell someone to be respectful and not disparage online.
Had the situation happened in the private sector, however, Gladstone said the NLRB could claim the city was interfering with employee rights — in particular an employee’s right under the National Labor Relations Act to engage in a concerted activity, which in this case was discussing a work-related issue other than pay with a colleague.
Without clear direction on the legal front for social media commentary, public-sector employees, particularly city and county government agencies could find drafting their own social media usage policies challenging. Although there are some resources available, Checel said municipal attorneys and those in charge of social media pages should closely watch cases that deal with First Amendment law.
Whitnell agreed and added that while it’s not exactly analogous to social media, public agencies should review the U.S. Supreme Court ruling in City of Ontario v. Quon, a case concerning the extent that the right to privacy applies to electronic communications in a government workplace.
In Quon, the U.S. Supreme Court held that a city’s discipline of officers following an audit of text messages that found that many were personal and of a sexual nature was work related and didn’t violate the officers’ Fourth Amendment right against unreasonable search and seizure.
Another case that Whitnell said could be germane to the issue of social media is Vargas v. City of Salinas. Though it’s strictly a California case, Whitnell said it has value because the California Supreme Court held that the city’s website was not a public forum, further illustrating the importance of clearly delineating what type of forum a public agency is creating with social media.
Still, the jury is still out when it comes to the legal implications surrounding government social media pages. Gladstone said there aren’t many answers yet because the issue is still fairly new. But she said while it’ll likely not be consistent from state to state, case law should soon start coming in that may provide further guidance to attorneys and public agencies.
Whitnell added that he thought most municipal attorneys are now past the point where they’d recommend against an agency or government creating a social media page and realize its importance for clients.
“They need to understand how it works, the potential legal risks and how those risks can and cannot be managed,” Whitnell said.
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