Disclaimer: The information provided does not, and is not intended to, constitute legal advice; instead, all information, content, and materials are for general informational purposes only. Please consult with your Agency’s Legal Resource for specific guidance in your respective region.
Is social media a public forum?
The answer is… it depends. As outlined in a high-profile case settled in 2019, a social media account or page is not a public forum by default. However, the way one uses social media can cause it to become one. This is usually the case for most public agencies and school districts that use their social media platforms for two-way communication. The court upheld that social media was a public forum if:
- A public agency or official uses an account or page to conduct official business,
- And uses the social media platform’s interactive features (like messaging, sharing content, and replying) to engage with the public.
Both of these conditions being met led the court to determine that the social media account in question did constitute a “designated public forum.” What exactly is a designated public forum, you ask? Let’s dive a little deeper into public forums and why they’re important.
What is a public forum?
The First Amendment protects free speech, but where a speaker is speaking, or the forum, effects how the right to speech and assembly is applied. In 1983, a Supreme Court decision divided forums into three distinct categories.
- Traditional public forums are places like public parks, sidewalks, and anywhere that has traditionally been open to political speech.
- Designated public forums happen when public property that isn’t considered a traditional public forum is used to conduct public business and engage with citizens. For instance, a town council may hold a public meeting in a local high school’s auditorium. The auditorium is a public forum while it’s being used as a venue for public political speech and expression.
- A limited public forum is a type of designated public forum. In a limited public forum, speech can legally be limited in certain ways. In the town council meeting example, the town council may legally limit the amount of time citizens have to ask questions or require that they speak into a provided microphone.
- Nonpublic forums are public properties where public business is conducted. Political speech may occur but can be limited by the government based on content, like in a polling place. There are limits to what we say in polling places, but that protects the integrity of elections.
In any of these forums, free speech cannot be discriminated against because of the viewpoint it expresses. Most courts have ruled that when a public agency or official creates or uses a social media page or account for official government business, they have created a limited public forum. So some limitations may be placed on speech, but viewpoint discrimination is not allowed.
A high-profile case sets clear guidelines
In 2019, the U.S. Court of Appeals for the Second District upheld that Donald Trump could not legally block Twitter users from his @realDonaldTrump account based on the users’ expressed viewpoints. Twitter is not necessarily a public forum, but for the courts, two key criteria of a public forum were being met by the way the @realDonaldTrump account was being used.
Though the account was originally personal and not professional, it was being used to conduct official government business. The second criterion that led the court to its ruling was that the account was being used to interact with the public. Because @realDonaldTrump replied to, retweeted, and exchanged messages with other accounts, this made the account an “interactive space.” These interactive features were accessible to the public without limitation. This led both a federal court in NY and the appeals court to conclude that the Twitter account had become a designated public forum. When the @realDonaldTrump account blocked another Twitter user for expressing a differing political opinion, that constituted viewpoint discrimination. ‘
What this means for public officials
There are several important takeaways from that case and others that agencies and officials can use to inform their behavior on social media platforms.
1. Separate personal from professional social media accounts.
Public officials should note that if they use their private social media accounts to conduct public business, they are creating a public forum. And agencies should note that they are responsible for council members’ social media pages, and draw the line between what they do on their own profiles and the official page of the office. A good rule of thumb is that all public business should be conducted on an official, preferably verified social media account. This also helps draw the distinction between office and officeholder.
2. Refrain from using social media to communicate with public employees’ personal accounts about work-related matters.
When officials use social media accounts to communicate with public employees about work-related matters this creates a public record on employees’ personal accounts that must be retained.
3. Be mindful of Open Meetings Law & social media quorums.
Another caution area when posting content regarding government matters is violating Open Meetings Law, which can happen if enough other officials engage in the post, which would result in a quorum.
4. Avoid First Amendment violations.
If an agency or official is going to use social media to engage with the public, they have created a public forum. This is exactly what social media should be used for, but it’s important to remember that certain rules apply to how speech can be moderated. You’ll need to keep that in mind when considering how to handle potentially objectionable content in comments, replies, and shares.
Watch our May 2021 webinar with attorney Mark Weaver to learn more about what kinds of speech are and are not protected, as well as how best to respond to objectionable content on social media.
What actions can public officials and agencies take?
Public officials are not obligated to respond to every constituent, leading to the court’s ruling that ignoring or even muting an account would be acceptable. In that case, the official would not be able to see tweets from the account in question, but they would still be able to see and reply to the official’s tweets. However, the safest course of action is to not respond. Download our comment moderation guide for an easy reference of what you can and cannot delete.
Blocking users on any government social media account is one of the most common ways to find yourself in hot water. Many courts have ruled that blocking citizens is a violation of their First Amendment rights. Public officials cannot exclude people from accessing their pages just because they disagree with them. But it can be difficult to control this, as many government social media accounts are managed by multiple people or have been handed down from previous employees. So how can you know that no one is blocked from your account?
ArchiveSocial’s Blocked Lists Alerts gives you visibility into who’s been blocked on any of your connected accounts. You can see the context of the block and what transpired on the platform that led to the blocking. This gives you the ability to successfully manage the list – unblock accounts or leave them blocked. If you leave them blocked and any difficulties arise, you’ll have the evidence to support your actions.
Archiving public records from public forums
Social media is considered a public record in all fifty states, which means public agencies must capture the public records they create when posting and engaging with citizens online This also ensures you have a complete record of activity on your page in case of litigation, even if posts have been hidden, edited, or deleted.
ArchiveSocial captures activity on your pages and accounts in near-real-time, so you never miss a post or comment. And you’ll have an easily searchable and secure archive of all that activity across your platforms and accounts, so you can find what you’re looking for with ease. You’ll be able to download the content you need (and with the all-important metadata that verifies content authenticity) to respond to public records requests, audits, or other retention requirements.
Digital Compliance Solutions
Archiving your content is just one part of the solution. The next? Simplifying how you respond to requests. Streamline your entire records request process with request management product, NextRequest. NextRequest is a leading provider of automation and workflow technology that simplifies how government agencies manage and reduce the risk associated with public records requests.
Don’t stop with just your social media. Web governance product Monsido keeps your website compliant with accessibility regulations. Monsido provides tools for web accessibility, website quality assurance, brand and content compliance, user consent management, social and web content archiving, and more.