Social Media Pitfalls to Avoid

Social media has become a critical means for municipalities and elected officials to communicate with their residents, but it has also become a way for problems and conflicts to emerge as well. 

Here are a few ways to avoid difficulties when using this powerful tool.

The First Amendment to the U.S. Constitution states that government “shall make no law … abridging the freedom of speech, or of the press.” The First Amendment limits a municipality’s ability to do things like delete a post or ban a user, and a key issue for social media platforms is whether the local government has created an open public forum or limited public forum. In an open public forum, which a municipality might establish by inviting or allowing open comment on any topic, the government may impose very few regulations.

 

Municipalities should take care to avoid establishing open public forums on social media. If they allow comments, they should include language and rules that create limited public forums, where expression is available only for a specific purpose or topic. Courts have found, however, that deleting comments that criticize the municipality or its employees violates the First Amendment, even in a limited public forum.

Municipalities should consult with an attorney when drafting the rules. The model social media policy from the International Municipal Lawyers Association suggests this language on social media platforms to clarify that the forum is limited:

“The purpose of this site is to discuss matters of public interest in and to the municipality as identified and raised by the municipality for discussion. We encourage you to submit comments that are on topic, but please address your comments to the specific topic(s) discussed. This is a forum limited to the specific topics identified and raised by the municipality.”

Having established only a limited public forum, the municipality may then impose viewpoint-neutral terms and conditions for comment, which may prohibit — for example — profanity, threats or racist comments.

Public officials need to beware the kinds of posts, like bullying or incendiary comments, that can damage the credibility of the municipality or officials’ ability to work with one another. They also need to consider whether their personal social media accounts have become a public forum.

In the 2019 case Davison v. Randall, the federal Fourth Circuit Court of Appeals found that a county councilmember used her personal Facebook page in a way that created an open public forum. The page listed her official county phone number, email and web address. Most of her posts related to her work and position as a member of the council. One post invited any resident to express feelings on any topic. Because the page was a public forum, the First Amendment applied to it, and the court concluded that the councilmember violated the First Amendment when she deleted comments based on their viewpoint. 

In the 2020 case Campbell v. Reisch, the Eighth Circuit Court of Appeals noted that public officials who use their social media accounts for official duties cannot block social media users based on viewpoint. However, the court ruled that a Missouri state representative whose account was “used overwhelmingly for campaign purposes” did not violate the First Amendment when blocking someone on social media. 

The SC Freedom of Information Act may create a complication when someone submits a FOIA request for social media records and the municipality cannot locate the records. The social media platform itself may not have records, especially from deleted posts, and this is where paid social media archiving platforms can come in. Understanding the potential for these FOIA requests and the costs of archiving solutions is an important part of local governments’ use of social media.