The solution to this dilemma is to embrace a clear comment moderation policy. But what makes a good policy, and how does a government communicator determine when content is in violation? To start with, certain categories of speech, including obscenity and direct threats, are not entitled to full protection under the First Amendment. Commercial speech is also subject to different treatment under the law, and can be excluded from a government page. And, of course, privacy laws can be invoked to justify the removal or personally identifiable information such as phone numbers, home addresses, and social security numbers.
Those are the easy cases, but what about the dreaded “off topic” comments? While it has yet to be tested in the highest courts, a strong case can be made that the US Supreme Court definition of a “limited public forum” can be applied to social media. Under this definition, public agencies can create designated forums in which they may limit the topic of speech or the class of speaker as long as they don’t discriminate based on viewpoint.
Fair application of the viewpoint-neutral rule can be both challenging and risky, so agencies who wish include an “off-topic” clause in their moderation policy are advised to do so with care. It is also essential to retain records of all hidden or deleted material. Remember, in the event of a lawsuit, it is difficult to justify the reason why a comment was removed if the comment no longer exists for review.
The following steps will help you create a comment moderation policy for your public agency that
allows you to enjoy the benefits of social media without all the risk.
The first step in keeping a page focused and productive is establishing clear guidelines for commenters and moderators to follow. It is not enough to simply state, “we reserve the right to delete inappropriate comments.” The categories of prohibited speech that are subject to deletion must be publicly posted to establish the limits of the forum.
The next step is training page administrators to distinguish between a prohibited category of speech and a protected viewpoint. For example, comments that are negative or conflict with agency opinion may be tempting targets for deletion, but can not be taken down just because they are unflattering.
No policy or moderator is foolproof, and case law specifically dealing with social media pages as limited public forums is scarce, so the most important step you can take to protect your agency from a lawsuit is to archive records of every post and comment. It is impossible to make the case that a comment was in violation of your policy if no record of that comment exists. Preserving both the comment and context can save your agency from a protracted and expensive legal battle.
Finally, don’t let comment deletion become the norm. The point of social media is that it is meant to encourage interaction, complete with diverse opinions and points of view. The most successful agencies on social media are the ones that face critics head on instead of hiding behind an aggressive take-down
policy. Often times negative public opinion is born out of misinformation or misunderstanding. Before hitting delete, embrace the opportunity to ask questions, provide information, correct misunderstandings, and
show a different side of the story. Even the most vocal critics can sometimes become the biggest civic boosters when their concerns are heard and addressed.
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