City Use of Social Media: Legal & Other Considerations
Melissa Kuehne is communications and development manager for the Institute for Local Government and can be reached at firstname.lastname@example.org. Corrie Manning, deputy general counsel for the League; Kara Ueda, attorney with the law firm of Best Best & Krieger LLP; and Christine Dietrick, city attorney for San Luis Obispo, also contributed to this article.
Nearly 75 percent of Americans now use social media. According to the Pew Research Center, as of August 2018, two-thirds (67 percent) of Americans reported that they get at least some of their news on social media including, for the first time, more than half (55 percent) of those age 50 or older. Americans are also now more likely than ever to get news from multiple social media sites, with approximately one quarter of all U.S. adults (26 percent) getting news from two or more social media sites. This is in contrast to a drop in daily newspaper circulation (down 11 percent) and viewership of cable evening news (down 12 percent), network morning news (down 10 percent) and local morning news (down 15 percent).
These statistics illustrate some of the reasons that cities statewide are increasingly experimenting with and expanding their use of social media. In addition to the pervasiveness of social media use among Americans, online platforms like social media offer cities a number of community engagement and transparency benefits.
“Our city is relatively new to social media, opening its first accounts in 2016,” says Alexa Davis, assistant to the city manager for Rolling Hills Estates. “The city is on Facebook, Instagram and NextDoor and is experimenting with live streaming via Facebook Live to better engage with our community, be responsive to concerns and share city news and events.”
Cities are building social media into their communications plans to help disseminate information and promote city events and projects. In addition, social media can encourage engagement from community members who may not normally get involved in civic matters because of time or transportation constraints, language barriers or other obstacles. Allowing residents to provide feedback and comments beyond in-person public forums and council meetings can provide cities with a broader picture of community values and perspectives. This open dialogue and engagement gives residents more access to the city decision-making process, which typically results in greater transparency.
“Maintaining an active social media presence allows me to share information and connect with my constituents — especially the younger generations — in a meaningful way,” says San Luis Obispo Mayor Heidi Harmon. “I hope to encourage and inspire my community to get involved with the city and in the decision making process.”
Challenges Related to Social Media
Although social media offers benefits and opportunities for cities, it also has some potential challenges.
For example, cities and other entities often struggle with how to manage their social media presence. A choice must be made about whether the site management is centralized as a function of the public information officer or communications staff or is decentralized to department staff. Centralized management more easily enables consistent messaging, branding and posting but it can also be time consuming. Although decentralized management allows staff with subject-matter expertise to post content and may create more buy-in and ownership from staff, it likely also creates the need for more upfront training of staff and oversight by communications and/or executive staff to ensure appropriate messaging.
Another consideration is staff time. Though some platforms can assist staff by allowing posts to be scheduled ahead of time, staff time still needs to be allocated to developing new content and responding to emerging stories and issues. As with all communications in a 24-hour news cycle world, it is important to set and manage expectations about response time to comments and messages.
There may also be a concern that only people with negative comments and opinions will engage. Adopting a social media policy with clear guidelines on how the site is moderated — such as no offensive or profane language, comments must be relevant to the related post, no personal attacks, etc. — can help staff address some of these concerns.
Currently not much legal precedent exists related to what cities can and cannot do on social media. However, when making decisions about how to engage on social media, cities should take a number of legal considerations into account. It is also always advisable to consult your city attorney if you have questions.
The Brown Act
The Brown Act requires governing bodies of local agencies to conduct open and public meetings, subject to limited exceptions, and to post meeting agendas in advance. It also prohibits “serial meetings” — a series of communications that results in a majority of decisionmakers conferring on an issue. This prohibition applies to electronic communications such as email and therefore may extend to interactions and comments on social media channels as well. For example, if a majority of the council comments on or likes the same post, this could be considered a “serial meeting” and trigger a Brown Act violation. It is also important to note that the Brown Act becomes applicable when candidates are elected, and not just when they take office.
The Public Records Act
The Public Records Act, subject to specified exemptions, requires public agencies to make documents created, used or possessed by the agency available to the public upon request. It is not currently clear which records cities are required to keep in relation to social media — whether just the posts and comments of the city itself or all comments on city posts. It is also unclear if the internet archives of the social media pages are sufficient or if cities need to download and save all records on their servers with other files.
Constitutional due process principles require a decisionmaker to be fair and impartial when the decisionmaking body is sitting in what is known as a “quasi-judicial” capacity. Quasi-judicial matters include variances, use permits, annexation protests, personnel disciplinary actions and licenses. Quasi-judicial proceedings tend to involve the application of
common requirements or principles to specific situations, much as a judge applies the law to a particular set of facts. If conversations about proposed city projects occur on social media sites, this may be considered a violation of the “ex parte communications” doctrine, which suggests that in quasi-judicial matters all communications to decisionmakers about the merits (or demerits) of an issue should occur in the context of the noticed hearing.
First Amendment Considerations
Another legal question arises around whether elected officials can block users and whether or not that constitutes a violation of the free speech clause of the First Amendment. A recent case, Davison v. Loudoun County Board of Supervisors, examines this issue. In this case, the chair of the Loudon County Board of Supervisors blocked a constituent from her Facebook page for approximately 12 hours. The constituent then sued, alleging this was a violation of his First Amendment and due process rights. The U.S. District Court for the Eastern District of Virginia found that the operation of the Facebook page created a “public forum” and therefore by blocking the constituent on the basis of his viewpoint constituted a violation of his First Amendment rights. However, the court also noted that public officials may moderate comments on their social media pages, and that it may not always violate the First Amendment to ban or block commenters from social media platforms. While this decision has no direct impact on California cities, it offers an interesting case study of how other jurisdictions are grappling with this complex issue.
For more information on the ethics laws mentioned here, visit www.ca-ilg.org/ethics.
Tips to Consider
Include social media in the orientation for newly elected officials. Many — if not most — cities conduct orientations for new council members covering city ordinances and state laws that council members need to understand and keep in mind. It may be helpful to include social media in this discussion to share your city’s social media policy (if one exists) or share some of the legal considerations mentioned here as they make the transition from candidate to council member. For example, suggest that they should at least be mindful of who else is commenting — particularly other council members — when they are considering commenting on social media posts.
Create a social media policy. Such a policy can set parameters on the branding, messaging and content for city-administered pages and outline policies for moderating discussions — for example, provide specific guidelines on moderating comments on Facebook. In addition, policies can outline which city staff members have the ability to post and/or the approval process for posting to social media channels. The Institute for Local Government offers a number of sample social media policies for cities to reference. For more information, visit www.ca-ilg.org/social-media-strategies.