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.
ArchiveSocial has been lucky to have attorney and government communications expert, Mark Weaver, join us for several webinars in the last few years and again recently to discuss how the First Amendment governs Facebook and other social media platforms. In his discussions, Weaver underscored the dangers that violating the First Amendment on social media platforms can pose to public agencies and employees. Watch the full webinar here.
Mark Weaver, First Amendment expert
With three decades of experience across the country, Weaver started his career as a city public information officer. He rose to become a communications director with the Pennsylvania House of Representatives and then spokesman for the United States Department of Justice in Washington. After working as a national communications consultant in D.C., he accepted an appointment as the Deputy Attorney General of Ohio, where he managed all the communications and web staff for that office.
It’s the norm now for public agencies and schools to use social media to communicate with community members. Weaver is a sought-after expert on the relatively new intersection of the laws governing public forums, free speech, and social media. He helps government communicators understand their rights, the rights of their constituents, and the responsibilities that come with doing public business online.
Moderating activity on your social media pages
Weaver emphasized that moderating comments by deleting or hiding them on your agency’s social media pages can be dangerous. The First Amendment protects much of the speech we see community members exercising on social media. There are certain circumstances where speech is not protected and can be deleted or hidden, such as threats, obscenity, copyright infringement, etc. But much of the speech we’d rather not see on social media, like insults or profanity, is protected and should not be deleted or hidden. Blocking someone is also a violation and should be avoided. Weaver encouraged agencies to translate the First Amendment as, “My agency should not take any action abridging the freedom of speech.”
Elected officials or other highly visible public officials may ask their communications employees to remove unflattering comments, but Weaver warned against it. You cannot abridge a person’s freedom of speech in a public forum, especially not because they disagree with you or your agency. Doing so would be viewpoint discrimination, which is not permitted. “The viewpoint that offends you has the same protection as the viewpoint you love,” Weaver said. Learn more about social media as a public forum here.
In the end, the safest approach is to leave comments up if in doubt. For more specific information on what is and is not protected by the First Amendment, watch the full webinar. You can also refer to our guide to First Amendment fundamentals here.
Consequences of violating the First Amendment on social media
If you delete or hide comments from someone or block them entirely on social media, it’s possible that you could be brought to court – federal court – for violating their First Amendment rights. For example, in 2019, the Walton County sheriff’s office had to pay $10,000 in a settlement with a resident whose critical comments were deleted from the office’s Facebook page. But there are many instances of this happening across the US.
Not only can someone sue your agency, but the complainant can also personally sue an individual government employee responsible for the violation for their own money. It can be a very costly mistake to make at work. Even if the damages in the case are low (as low as $1), you may have to pay the legal fees of the person who sued you.
What you and your agency can do
So what about prior deletions or other past violations? You can’t change your past behavior, but you can do better going forward. “You can’t control what you did last year, but you can get the right policies and training,” Weaver said. Start by aligning your moderation policy and training to leave all protected speech and comply with your state’s records laws for social media content.
About a past incident
If you are worried about a particular incident or mistake in social media moderation in your agency’s past, check your state’s statute of limitations to see if you can still be sued. Nolo, a legal help website, provides an overview of each state’s statute of limitations here. It’s important to check your individual state’s laws to be sure. You can also consult your agency’s counsel to get more information.
In the future
Everyone who touches your agency’s social media pages should be aware of what is protected speech and avoid deleting or hiding comments and blocking users from the page. If you don’t already, establish an internal social media and moderation policy. ArchiveSocial’s Social Media Policy templates can be found here.
Another important step toward compliance is archiving your social media content. The biggest reason to archive this content is because records laws in all 50 states require it. Find the specific laws in your state here. But it’s also important to archive to keep a complete record of social media activity so that your agency can answer any inquiries or litigation around social media.
Even when your agency has a solid policy in place and employees trained on best practices for comment moderation, users may delete their own comments on your page. This can make it look to others like you are deleting comments, and you may be accused of over-moderating the page. This puts you at risk of a lawsuit. Users deleting their comments can also put you at risk of violating records laws if you have not been archiving content. If a records request were made, you might be unable to answer it if the content has been deleted. Social media platforms do not save this content, so it is likely lost forever without an archiving solution.
In either case, an archive gives you a complete record of your agency’s interactions on social media if someone files a record request or brings a suit against you. ArchiveSocial archives content on your pages in near-real time, so you never miss a comment or post. If you do have to delete or hide a comment, it will be saved in your archive and you can add annotations to explain why it was done. A feature called Blocked Lists allows you to see whom, if anyone, has been blocked from your accounts.
Start your archive now
Start your archive today with ArchiveSocial. The first 30 days are free. ArchiveSocial will not only log all activity on your connected social media accounts going forward, but it will also capture all content currently on your page for the last six months. If you decide to go forward with ArchiveSocial as your social media archiving solution, we will capture everything currently on your page going back to its creation.