While Facebook and other forms of social media can be great vehicles for municipalities to communicate with residents (read: free), they also create a legal minefield ripe with First Amendment traps. Depending on how they are structured, social media can either be the one-way vehicle that munis expect or, with open public commenting/postings, can be the new “modern public square” entitled to broad First Amendment protection. On the other hand, social media usage by municipal officials and employees – either on- or off-duty – raises its own host of personnel challenges. A recent decision out of the U.S. Fourth Circuit Court of Appeals and, separately, the #feelincute challenges highlight some of the difficulties municipalities face in both of these areas.
Official Facebook Pages
First, in the Fourth Circuit decision in Davison v. Randall, the Court held that Facebook page of an individual elected official was a “public forum.” The Court concluded that the official violated the First Amendment by deleting a post containing negative comments by a resident and temporarily banning that resident.
One of the controlling factors in the Court’s decision was how the Facebook page was set up. Important to note is that the page was NOT administered by the local agency (here the Loudoun County Board of Supervisors). Instead, Chairman Randall created and used the Facebook page to update constituents on issues arising in the community, including upcoming meetings, public safety threats and community events. Public comment, from the positive to mildly negative, was allowed. However, interspersed among kudos for community events came comments by Davison – a frequent critic who managed his own page.
After Davison complained in person about alleged unethical actions by school board members at a public meeting, he took to Randall’s Facebook page to continue to air his criticisms. In response to Randall posting a general summary of the meeting, Davison posted allegations that school board members had conflicts of interest and acted unethically.
Chairman Randall took apparent offense at the comments and responded by deleting the entire post, including all comments. She also blocked Davison from posting further on the page. The Court noted that, the next morning, about 12 hours later, Randall reconsidered and lifted the ban on Davison.
After a legal challenge that made its way before the trial court and the Fourth Circuit Court of Appeals, the appellate court held that Randall’s actions violated Davison’s First Amendment rights. Among other findings, the Court held that the actions constituted viewpoint discrimination, and rejected the arguments that it did not amount to a public forum eligible for First Amendment protections because it was not an official municipal page. Instead, the Court reiterated principles applied generally under First Amendment law that, in clothing the page in the trappings of her public office and allowing public comment, her action in curtailing some of that comment constituted a First Amendment violation. The takeaway from the Court’s decision is that: even “unofficial” pages of local officials can steer themselves into First Amendment territory; and careful consideration needs to be given to both the setup and the monitoring of those social media vehicles.
Employees Behaving Badly
On the other side of the social media universe, the recent #feelincute trend highlights the potential pitfalls with municipal employees using social media – whether on their own time or on duty. In the #feelincute “challenge,” police, corrections and other officers took to social media to post pictures of themselves about to do their job, accompanied by snarky, sarcastic commentary. While some might have been innocuous, you can imagine how things quickly got out of hand with the posts. Examples included: a photo of a parked police vehicle with the tagline “#feeling cute … might stop someone later, idk;” to a water authority employee posting “#feeling cute, might just cut off your water later … idk;” to a correctional officer, “feeling cute, might just gas some inmates today, IDK;” and then more ill-advised police posts, “feeling cute, might get suspended for justifiable use of force …idk” and “feeling cute, might shoot your baby daddy today …idk.”
The end result in many cases was discipline and/or termination, irrespective of any protests that the postings might have been “off the clock.” The Courts are generally well-settled that municipalities with policies in place governing social media usage can discipline employees for off-hours conduct. Among many factors to consider are whether the conduct impairs harmony among co-workers, interferes with the operation of the agency and/or undermines the mission of the institution. Certainly, an argument can be made that the posts eroded public trust in those agencies to carry out their roles … irrespective of whether they were made in jest! It is doubtful, for example, that a department is going to effectively argue the “I was joking” defense to an excessive force claim leveled against that officer. And the statements play into stereotypes on both sides of the fence, impairing a department’s efforts to maintain public trust in its policing.
Critical to navigating the landmines associated with both of the above issues are established municipal social media policies – both a policy to guide official municipal social media posts, education for individual officials maintaining their own pages, and a policy to govern and advise employees that their social media usage can be the subject of discipline, up to termination.
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