Bar News - June 17, 2011
Municipal & Governmental Law: Facebook, the First Amendment, and Local Government
By: Andrew B. Livernois and Lisa M. Lee
Facebook creates a channel to reach into people’s lives and connect with them. Unlike traditional websites, a Facebook account can be established in minutes by anyone with a rudimentary knowledge of computers. It is free. It is not surprising that a number of municipalities and school districts around the state are beginning to create Facebook pages to keep citizens, students and parents informed and to elicit feedback and information from them. In some cases, individual municipal departments, such as police departments or recreation commissions, are establishing Facebook pages. Since there is no formal application process, and no attempt is made by Facebook to ensure that the person setting up the page is authorized to do so, some governing bodies may not even know that these municipal pages exist. Marketing consultants are traveling the state encouraging municipalities to get on Facebook, perhaps without knowing that municipalities face unique statutory and constitutional issues that may lead to costly future litigation.
One of the hallmark features of Facebook, and the thing which most distinguishes it from a traditional website, is the "wall." A Facebook wall is similar to a bulletin board or discussion page. When an organization has a Facebook page, other organizations or people can "like" the organization. Once that is done, followers can post on the wall of the organization. Those wall posts may contain commentary, photos or links to other sites. What is more, follow-up comments can be made to posts on the wall, thereby creating a sort of running conversation. Under the normal default settings for Facebook, the wall is open to comments from anyone. The default settings contain no filters whatsoever for profanity or restriction of topics. Although it is possible to restrict the use of the wall, the privacy settings that need to be enabled to do this are not particularly easy to find. What typically happens is that profane or scandalous comments are made on a wall, and that event causes the administrator to delete posts, restrict content or restrict use of profanity.
The difficulty arises because the account holder has ultimate control over the wall, and can remove posts at will. What happens when citizens begin posting material on the wall that municipal officials find objectionable? When can town officials remove posts that are deemed offensive or that express unpopular opinions? How do you decide which comments to allow and which to remove? And if officials remove posts from the wall, are they opening the municipality up to liability for violating the First Amendment rights of the citizens?
The First Amendment FrameworkThe First Amendment generally prohibits the government from regulating private speech. However, the government’s own speech is exempt from First Amendment scrutiny (Pleasant Grove City v. Summum, 129 S.Ct. 1125, 1131 (2009)). Thus, if a Facebook page is deemed "government speech" town officials are free to regulate the content of the wall.
A recent First Circuit case held that a town’s refusal to place a link to an organization on its website was government speech, and the website was not a public forum (Sutliffe v. Epping School District, 584 F.3d 314 (1st Cir. 2009)). Unlike a Facebook page, the town website did not contain a designated area open for citizens to comment. The Town had exclusive ability to control the content of the website, and had not opened it up to general public use. Contrast that with the wall on a Facebook page, which is intended to be interactive. Thus, it is unlikely that a court would find Facebook to be government speech unless the account settings are so strictly set that the Facebook page functions like a webpage.
The more likely scenario is that a municipal Facebook page will have some level of interactivity. Once it does, it will be characterized as one of three public fora. The type of public forum the municipality has created will dictate the level of control the municipality has over the content posted on its page (Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S 788, 802 (1985)). The three public fora are: (1) traditional public forum; (2) designated public forum; and (3) nonpublic forum.
A traditional public forum, such as a street, sidewalk, or park, is a "place which by long tradition or by government fiat [has] been devoted to assembly and debate" (Perry Educ. Assoc. v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983)). In these areas, government regulation of expressive activity must withstand strict scrutiny. Id. Since Facebook is a new phenomenon, it is unlikely that a court would deem it a traditional public forum.
Interactive municipal Facebook pages still may be subject to strict scrutiny. In a designated public forum, the government "intentionally opens a nontraditional public forum for public discourse" (Cornelius, 473 U.S at 802). There is a strong argument that an interactive municipal Facebook page falls under the designated public forum analysis. "Government restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrictions in a traditional public forum" (Pleasant Grove City, Utah v. Summum, 129 S.Ct. 1125, 1132 (2009)). Thus, government restrictions must be narrowly tailored to serve a significant government interest and must leave open ample alternative channels of communication.
"The Court has also held that a government entity may create a forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects. In such a forum, a government entity may impose restrictions on speech that are reasonable and viewpoint-neutral" (Pleasant Grove City, 129 S. Ct. at 1132). However, "[t]he government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject." Id. "When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination" (Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995) (internal citations omitted)). Therefore, even if a municipality makes an attempt to limit the subjects open for discussion on its Facebook page, restrictions have to be reasonable and viewpoint neutral. So, for example, if the recreation department allows people to post messages saying that the recent festival was a great event, it also needs to allow other people to post complaints that it was terrible.
How Can Municipalities Minimize Liability?To date there is no developed body of law regarding social networking sites and the First Amendment. The easiest way for a municipality to avoid liability for having a Facebook page is to simply disable the public comment feature on the wall from the inception of the account, and only allow the government official who is responsible for the maintenance of the Facebook page to post on the wall. Doing so will make the page very similar to a traditional website.
Some municipal clients, however, may have a strong desire to allow public comments on the wall. Those municipalities need to establish clear policies and guidelines that will be used for determining the allowable topics of discussion on the website, and the types of comments (e.g. obscenity, libel, etc) which will be barred. Those policies need to be established in a content-neutral way so that the town is not accused of engaging in viewpoint discrimination. Preferably, these policies and appropriate settings will be established when the Facebook page is created. If critical or incorrect content is posted on the page that the municipality [objects to], the safest course is to allow it to remain. Of course, the administrator of the site may "comment" on a post to correct misinformation in a diplomatic way.
This is a way to use the interactive nature of Facebook to your advantage without being accused of silencing opinions.
|Andrew B. Livernois
Andrew B. Livernois and Lisa M. Lee are attorneys at Ransmeier & Spellman in Concord. Their practices focus on representing government entities in a variety of matters. They can be reached at (603) 228-0477.