A Social Media Strategy For Protecting Ourselves From Ourselves.
As we municipal government junkies await decisions from the New Jersey Legislature on whether the Open Public Records Act will be amended, and if so how, the deadline for blog articles marches on. So, let’s use our time together to discuss another issue that many municipalities wrestle with – the Township Facebook Page.
Social media has allowed governmental officials to communicate efficiently and economically with their residents. No more printing and mailing out information with a 5% open rate and a three-week lead time. Information can be posted the same day and made available to those interested in accessing it. But in today’s society, with anger, frustration and lack of civility reaching uncomfortable levels, such efficient communication can sometimes result in new challenges.
For example, a basic staple of municipal life is an annual “State of the Municipality” address where the Mayor lays out goals and actions that he will support in the next 12 months to make the municipality a better place. Maybe the municipality is opening a new public works yard; with expanded facilities for residential drop off of recycling and yard waste. If the speech is delivered in a small, chamber of commerce type conference room, in front of civic minded residents, it might even generate some polite applause.
But if the text of the speech is posted to the Township Facebook Page, a different level of feedback can be anticipated, including perhaps:
- OldTimer1971 says that the old yard was fine, and worked for several decades, and this new project is just an old-fashioned waste of taxpayers’ limited dollars.
- MY_TAXES_TOO_ HIGH posted “Maybe if the municipality really cared about its citizens, they would schedule extra recycling pickups from Mother’s Day through Labor Day – given the number of parties that will occur during the warmer months – instead of looking for a pat on the back from their citizens for making them do the work themselves.
- EARTHMOM’81 has concerns “any real leader who cared about the future would force everyone to compost yard waste rather than collect it for disposal.
- ROME_Has_to_Burn is fed up and notes that “these actions prove that the Mayor is a socialist and a G*& D@(!) out of control agent of the …. And he must be opposed at any opportunity, including by direct confrontation when he picks his daughter up from the middle school every day at the 3:05 P.M. dismissal.
The Mayor has a pretty thick skin, but the last comment strikes a chord, and he asks that it be taken down. The people inside the municipal building are “looking into it” and “trying to find a solution.” The Mayor is a patient and good-hearted man who thanks them for their efforts … or not.
It seems like a simple, straightforward, and reasonable request. But when the Township Facebook Page was first instituted, it was touted as the virtual town square, where the residents, businesses, and elected officials could come together to discuss the issues of the day. Thus, it is a public forum, and there are limits to what can be done by a government to edit, amend or delete a response to a Township’s social media post.
Under the First Amendment to the U.S. Constitution, a government’s ability to restrict or police speech in a public forum is limited and subject to legal challenges. Since the 1980’s the United States Supreme Court has recognized three categories of public forums:
- the quintessential public forum (think public streets, sidewalks, and parks),
- limited public forums (public buildings, libraries, or theaters); and
- non-public forums (governmental functions controlled and secured by the Government where the public is not welcomed – think military bases or public email lists).
Depending on the classification of the public forum, the government’s ability to regulate or control free speech is vastly different. For a quintessential public forum, free speech rights will almost always be protected and any attempt to control the content of protected speech will likely be struck down. A limited public forum allows for government to regulate the time, place, and manner of speech (hours when public is allowed to assemble, number of people given the size of the venue, whether speeches can be amplified using speakers and microphones, lighting, etc.) but regulation again must be content neutral. And for non-public forums, the government has greater leeway to regulate not just the time, place, and manner of how the speech is conducted but also whether public speech is welcomed at all.
Now, true confession time, the last two paragraphs are the most basic of summaries and each of the concepts listed above is subject to hours of research: usually without a clear and definitive answer. There are literally entire semesters of law school classes devoted to this topic, with various three-part tests, differing levels of deference, and of course, the balancing of varied interests. And if we start with the assumption that the Township Facebook Page is a quintessential public forum, the analysis and outcome to the Mayor’s request to take down the comment is completely different than if we assume that it is limited public forum … well truthfully, the analysis is different, the outcome is likely the same. And we are probably telling the Mayor no.
So, what to do? A growing number of municipalities, when confronted with an inability to monitor, edit, or delete offensive or dangerous comments, have decided the easiest way to use social media to communicate with its citizens is to restrict its citizens ability to respond back. They shut off replies. And here is the thing – it is constitutional.
By disallowing replies and comments, the government is not allowing a public forum to be formed. An aggrieved citizen can still post that the Mayor is “a socialist and a G*& D@(!) out of control agent” just not on the Township’s Facebook Page. The legal theory is called the Governmental Speech Doctrine, and it says essentially that the government has a right to speak for itself; or expressed differently, the government can speak directly to its people. And if replies are disabled, there is no public forum and no responses to monitor, moderate, or ban.
The theory began in the lead up to the Second World War. Once the Government of the United States began adopting policies supporting the Allied Nations in the European war against the Axis Powers, there were some in the United States that believed the Government was not speaking for them. And the remedy they sought was to be given an opportunity to respond with their own views. The Courts said essentially: you have that right to speak out against the policies of your government, but the Government does not have an obligation to amplify your views to make sure “both” sides of the debate can be heard. This does not mean the Government can say whatever it wants. There are limitations to what the Government can say directly, but these limits are imposed by other constitutional provisions, like the establishment clause of the First Amendment, rather than principles of freedom of speech.
Applying the same concepts to the more mundane tasks of a municipal government, imagine posting an item to the Township Facebook Page. It is a reminder that Monday is Columbus Day, a holiday under the municipality’s labor contracts, and municipal offices and non-essential municipal services will be closed that day. If Monday is your regular pick-up day for trash, it will be collected on Tuesday. Please do not put your trash cans out on Sunday as there will be no trash collection on Monday.
If comments are disabled, that is the post. But if comments and replies are enabled, everyone may get to consider, among other things, various theories on colonialism, genocide, indigenous people, and Italian-American pride. And depending on the municipality, and its citizens, such discussions may be welcomed or anticipated. Which is great, as long as they did not put out their trash cans on Sunday before posting.
Tom Hastie is a partner in Malamut Law’s Governmental and Regulatory practice group. Contact him at THastie@MalamutLaw.com
The content of this post should not be construed as legal advice. You should consult a lawyer concerning your particular situation and any specific legal question you may have.
