Social Media and Cities: When Is It a Public Forum?

With the growing number of social media platforms and their rapidly increasing potential to attract audiences and disseminate information, local government leaders, management, and staff seeking to engage the community often wonder what can be done about potential internet trolls and keyboard warriors. The chimeric landscape of social media, the vastly growing “like, comment, subscribe” culture, and the burgeoning potential conflicts between the use of technology and First Amendment rights often lead local governmental entities scratching their proverbial heads.

It should be said that, like the latest TikTok trend, the law surrounding a public entity’s use of a private entity’s platform to communicate to and with the public is quickly changing and could potentially hold some surprises.

Local governmental entities using social media to interact with the online community most likely constitutes a forum.

Courts have recognized three types of government forums, including traditional public forums, designated public forums, and nonpublic forums, which we previously discussed here. The Supreme Court has stated that it will look at the policy or practice of a governmental entity to determine if the entity intended to designate a place not traditionally open to assembly as a public forum. Unfortunately, courts have yet to slate governmental social media pages as a particular forum, but there seems to be general agreement that governmental social media pages serve as traditional public forums.

Recent case law suggests that social media platforms would probably be considered public forums, but most cases have been settled – prior to such determination – to the detriment of the blocking or comment removing public entity.

Language in Packingham v. North Carolina, heard by the Supreme Court of the United States, seems to suggest, without explicitly stating, that Facebook would be characterized as a traditional public forum.

While cross-country caselaw remains murky, guidance can still be gleaned from the settlements reached between the parties.

In 2016, the American Civil Liberties Union, ACLU, sued the Police Department of the City of Beech Grove, Indiana, for blocking two individuals who commented on the potential inaccurate reporting of crime statistics. The ACLU later accepted a monetary settlement as well as the City of Beech Grove’s agreement to change its social media policy.  The City removed its Comments Section, thus blocking individuals from posting future comments. The new policy requires the City of Beech Grove to issue warnings if a community member has violated its Facebook policy, with the City’s attorney blocking the community member after three warnings.

The matter was settled before the court could hear the case, but since the American Civil Liberties Union agreed to the policy change, it – or something similar – could serve as a model for moderating social media accounts.

In 2018, when PETA sued the President of Texas A&M University, there was a small glimmer of hope that public entities in Texas could receive some direction as how to best navigate social media stratosphere, but again, the parties reached a settlement agreement. PETA has alleged that Texas A&M University had set-up an automatic Facebook filter to exclude posts containing certain words. The settlement resulted, again, in changes to the public entity’s social media policy as well as $75,000 payable for PETA’s attorney’s fees.

Since explicit guidance is incredibly limited, the most conservative approach is to consider your entity’s social media page as a public forum and enact rules regarding comment moderation with this classification in mind.

In a traditional public forum, restrictions on speech are viewed with strict scrutiny and are only allowed if they serve a compelling state interest and are narrowly tailored to meet the needs of that interest.

The extent to which an agency limit or restricts speech requires careful consideration, including the application of the First Amendment to the U.S. Constitution. The criteria for removing, rejecting, or disavowing public content should be determined by each agency and communicated to the public in a public social media policy. For a good place to start, the Texas State Library and Archive Commission has published a Social Media Policy template, which can be found here.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our commercial and business litigation practice can be found here.