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Social Media and Public Agencies: Legal Issues You Should Know About


This column is a service of the Institute for Local Government’s Ethics Project, which offers resources on public service ethics for local officials. For more information, visit www.ca-ilg.org/trust. Special thanks to Best Best & Krieger for its support of this column.


 Question: Your April 2008 article on the ethics of blogging essentially counseled, “If you can’t beat the bloggers, join them.” If a public agency plans to follow that advice and begin using social media, what legal issues should its staff take into consideration?
 
Answer: The terms “social media” and “Web 2.0” refer to various activities that integrate technology, social interaction and content creation. Social media allow people to create online content and organize, edit or comment on it, as well as combine and share it. Social media and Web 2.0 use many technologies and forms, including web feeds, blogs, photo and video sharing, podcasts, social networking and more.
 
Examples of social media websites include Twitter, Facebook, Digg, StumbleUpon, Yahoo!Buzz, Reddit, LinkedIn and YouTube. Facebook and LinkedIn help connect friends and colleagues. Digg and Yahoo!Buzz promote sharing online news articles. YouTube focuses on sharing videos.
 
These Internet technologies have transformed how users communicate with each other. As a key consequence, traditional institutions — for example, the mainstream media, corporations and public agencies — exert far less control in the flow of information. From an ethical standpoint, this promotes the value of fairness by giving a voice to more people.
 
Social media have both positive and negative implications for public officials and agencies. The legal issues represent one such set of implications. Issues to be aware of include:
  • First Amendment issues relating to government restrictions on speech;
  • Use of public resources, including both personal and political use;
  • Restrictions on employee use of social media, both on behalf of the agency and personally;
  • Open meeting law issues; and
  • Public records retention and disclosure issues.
 
The best way to address these issues is to adopt policies that guide both the public and staff on how the agency is using the tools offered by social media. This article discusses these issues and includes excerpts from public agencies’ social media policies; additional samples are available at www.ca-ilg.org/socialmediapolicies.
 
First Amendment Issues
 
Public agencies typically want to use social media to push information out to constituents and others. For example, public agencies have successfully used Twitter to publicize information about emergency response during disasters and poll operations on election day. But social media typically offer recipients of information a way to respond, and such responses may at times be critical of the agency.
 
With more traditional websites and e-mail newsletters, a public agency does not open its communication vehicles to others who can post materials of their own (as opposed to the agency’s) choosing. In this situation, the communication vehicle is not a public forum, and the agency does not violate First Amendment rights when it excludes content.1
 
If a public agency does allow others to post materials of their choosing on a website, blog or social network site, then an argument can be made that the agency has created what the courts call a designated public forum. This would mean that the agency cannot exclude (or delete) material based on its content except for compelling reasons. The way the courts frame this is that restrictions must serve a compelling state interest that is narrowly tailored to achieving that interest.2
 
Even if the agency created only a “limited public forum” for certain groups or on certain topics, it cannot delete posts simply because they are critical of the agency, its officials or employees or because the agency otherwise dislikes what the posts say.
 
There may be technological ways to limit how much conversation occurs on the agency’s page. On Facebook, for example, a public agency has choices on how to set up its page. On a “fan page,” an agency may select settings so that only authorized staff can start a new topic. This helps limit topics to ones that are related to agency business. According to Facebook, however, there is no way to turn off “comments” on a Facebook wall page — even if one restricts the other settings.3
 
The State of Utah’s social media policy4 gives the following direction to its staff:
 
Moderating Comments
 
In some social media formats, such as Facebook, blogs, Twitter responses, etc., you may encounter comments that cause you concern as a moderator or responsible party. If user content is positive or negative and in context of the conversation, then the content should be allowed to remain, regardless of whether it is favorable or unfavorable to the state. If the content is ugly, offensive, denigrating and completely out of context, then the content should be rejected and removed.
 
Note the use of the word “and” as opposed to “or” in the last line: content must by “ugly, offensive, denigrating and completely out of context” to be rejected or removed.
 
Issues Related to Use of Public Resources
 
Public officials are aware of the restrictions on using public resources for either personal or political purposes.5 State law says that elected officials and staff may not use public resources for personal or campaign purposes (or other purposes not authorized by law).6
 
Personal Activities
 
“Personal purposes” mean those activities that are for personal enjoyment, private gain or advantage or an outside endeavor not related to business. “Personal purposes” do not include the incidental and minimal use of public resources, such as an occasional telephone call.7
 
The law suggests that an occasional personal “tweet” or visit to one’s personal Facebook page might not be a violation of the law. Employees should be reminded, however, that it’s important to keep in mind public perceptions (and the public includes one’s friends and family). It should never appear public servants are spending work time doing anything other than the public’s business.
 
Thanks to Our Supporter
 
The Institute for Local Government (ILG), which is a 501(c)(3) organization, receives funding from a variety of sources. Its public service ethics program relies on support from publications sales, training fees and private donations. ILG gratefully acknowledges the firm of Best Best & Krieger for sponsoring the first three “Everyday Ethics” columns in 2010. Best Best & Krieger represents 32 California cities as city attorney. Western City and ILG appreciate Best Best & Krieger’s shared commitment to promoting ethics in public service.
 

Seattle’s Social Media Policy

The City of Seattle relies on a “limited public forum” theory in its social media policy, which reads:
8. Users and visitors to social media sites shall be notified that the intended purpose of the site is to serve as a mechanism for communication between city departments and members of the public. City of Seattle social media site articles and comments containing any of the following forms of content shall not be allowed:
a.   Comments not topically related to the particular social medium article being commented upon;
b.   Comments in support of or opposition to political campaigns or ballot measures;
c.   Profane language or content;
d.   Content that promotes, fosters, or perpetuates discrimination on the basis of race, creed, color, age, religion, gender, marital status, status with regard to public assistance, national origin, physical or mental disability or sexual orientation;
e.   Sexual content or links to sexual content;
f.    Solicitations of commerce;
g.   Conduct or encouragement of illegal activity;
h.   Information that may tend to compromise the safety or security of the public or public systems; or
I     Content that violates a legal ownership interest of any other party.
These guidelines must be displayed to users or made available by hyperlink. Any content removed based on these guidelines must be retained, including the time, date and identity of the poster when available (see the City of Seattle Twitter, Facebook and CityLink standards).
 
Seattle’s policy reserves the city’s right to restrict or remove any content that is deemed in violation of its policy or any applicable law; it also indicates its goal of approaching the use of social media tools as consistently as possible, enterprisewide.8
 

Access to Technology in California: The Digital Divide

 A June 2009 study by the Public Policy Institute of California reveals these interesting trends:
  •  76 percent of Californians have access to the Internet;
  • Rural Californians are as likely to use the Internet as urban Californians and almost as likely to have access to high speed Internet; 
  • Latinos are less likely to use information technology than whites, blacks, and Asian Pacific Islanders;
  • Those with disabilities also are less likely to use a computer and the Internet;
  • Renters are less likely to have access to the Internet and broadband technology than homeowners; and
  • Access also varies by income as well.
For more information, visit http://www.ppic.org/content/pubs/jtf/JTF_DigitalDivideJTF.pdf; more resources are also available at www.ca-ilg.org/cgitechnology.
Footnotes:
1 See Vargas v. City of Salinas, 46 Cal.4th 1, 37 n. 18 (2009) (finding city had no obligation to provide those with a different point of view access to the city’s website), citing United States v. Am. Library Ass'n, Inc., 539 U.S. 194, 204-206 (2003);Arkansas Educ. TV. v. Forbes, 523 U.S. 666, 673-677 (1998);Cornelius v. NAACP Legal Defense & Ed. Fund, 473 U.S. 788 (1985);Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 46 (1983);Clark v. Burleigh, 4 Cal.4th 474, 482-491 (1992)) See also Sutliffe v. Epping School Dist., --- F.3d ----, 2009 WL 2973115 (1st Cir 2009) (noting that it is possible there may be cases in which a government entity might open its website to private speech in such a way that its decisions on which links to allow on its website would be more aptly analyzed as government regulation of private speech); Hogan v. Township of Haddon, 278 Fed.Appx. 98, 101-02 (3d Cir 2008) (rejecting elected official’s claim that she had a First Amendment right to publish articles in the town newsletter and to post on the town’s website and cable channel because these communications vehicles were local government-owned and sponsored, and as such are not public or limited public forums); Page v. Lexington County School Dist. One, 531 F.3d 275, 285-85 (4th Cir. 2008) (rejecting claims that links to other websites did not vitiate school district’s retention of complete control over its website or create a limited public forum, but noting that had a linked website somehow transformed the website into a type of “chat room” or “bulletin board” in which private viewers could express opinions or post information, the issue would, of course, be different).
2 Perry Educ. Ass'n, 460 U.S. at 45.
3 Available at http://www.facebook.com/government#!/government?v=wall (click on “resources” tab).
5 See Stanson v. Mott, 17 Cal. 3d 206, 210-11(referring to expenditure of staff "time and state resources" to promote passage of bond act); Vargas v. City of Salinas, 46 Cal. 4th 1, 31-32 (2009). See also People v. Battin, 77 Cal. App. 3d 635, 650 (4th Dist. 1978) (county supervisor's diversion of county staff time for improper political purposes constituted criminal misuse of public monies under Penal Code section 424), cert. denied, 439 U.S. 862 (1978), superseded on other grounds by People v. Conner, 34 Cal. 3d 141 (1983); Cal. Gov’t Code § 8314.
6 Cal. Gov’t Code § 8314(a).
7 Cal. Gov’t Code § 8314(b)(1).
8 Seattle Social Media Policy, Sections 9 and 10, available at http://www.seattle.gov/pan/SocialMediaPolicy.htm.