First Amendment Fundamentals when Using Social Media

Author: Molly Matthews
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The First Amendment and social media

ArchiveSocial recently hosted a webinar, Social Media and the First Amendment, with Attorney Mark R. Weaver, which drew a crowd of public agency communicators from all over the United States. Weaver discussed how to avoid the inherent risks of having an online presence. He also addressed how the First Amendment and social media affect your agency, and how you can protect it from legal fees or even lawsuits.

Mark Weaver is an experienced media law attorney who also counsels public and private sector clients on crisis communications, social media, and litigation communications. Weaver owns Communications Counsel, Inc. which is a national communications consulting firm. He has three decades of experience working with clients all around the nation. Weaver has had multiple professional jobs in government, including, Assistant Director of Public Affairs for the U.S Department of Justice, Public Information Director for a large Pennsylvania municipality, and Vice President of a national communications firm in Washington, D.C. He has used his experiences to lecture around the country. Weaver has counseled both private and public sectors on PR, media relations, social media, and crisis communications.

After the webinar, we compiled a crucial list of what the First Amendment gives protection on social media and what it doesn’t.

But first, what is The First Amendment?

The First Amendment of the United States stops the government from making laws or taking action that violate citizens’ freedom of speech. And when a government agency creates a forum for speech, that’s where the First Amendment comes into play. A “traditional” public forum has the strongest speech protection and speech cannot be regulated in any way. Then, there’s a “limited” public forum, which can be regulated with reasonable time, place, and manner restrictions. Most courts that have looked at this issue agree that government social media sites create a limited public forum. On social media, citizens can voice their opinions using their freedom of speech rights, and government hiding, deleting, or blocking comments based on viewpoint discrimination is likely unlawful. As a public agency, do you know what to do when a comment appears on your feed that’s contrary to your agency’s values? Do you know the dangers of violating First Amendment rights through comment moderation? We’ll reveal Weaver’s explanation on what First Amendment protections people have on social media vs. what isn’t covered under the First Amendment below.

What on social media has protection under the First Amendment?

You may be surprised by what has First Amendment protection online. “The speech that bothers us the most typically has the greatest First Amendment protection,” Weaver explained. This includes false statements, and Weaver encouraged listeners to not “go down the route of deleting comments that are ‘misleading’, since almost every comment can be misleading to someone.” Anyone who claims their First Amendment rights are violated can sue your agency and you personally. “The kind of lawsuits you will face with improper comment moderation on social media would be brought to federal court in the same way if you have discriminated against race,” Weaver told us. This is considered a serious violation of the Constitution, so it is essential to be careful when you want to delete or hide a comment on a government social media site.

What about Hate Speech?

Contrary to what you might expect, it is the most offensive speech that gets most protected. Offensive speech – one type of which is “hate speech,” should not be deleted in a comment on a government social media site. Deleting offensive or hate speech can get both you and your agency in trouble. For example, if someone were to see that their comments were unconstitutionally deleted or hidden (or that they were blocked), then they have the right to sue in federal court. The Supreme Court and other federal courts have ruled that comments are protected in a limited public forum when the comments are offensive, hateful, or harassing. Unfortunately, “There’s no good working definition of hate speech that doesn’t include a subjective analysis by government officials which might change from agency to agency,” Weaver tells us. This type of speech on your government agency site might be frustrating but you can’t legally take them down.

What doesn’t have protection under the First Amendment?

When moderating comments on social media as a public agency, it is crucial to know what isn’t protected under the First Amendment. In the webinar, Weaver lays out a list of eight essential things that don’t have First Amendment protection and, in most cases, can be deleted or hidden from government social media comments:

1. Obscenity

Obscenity presents itself in many different forms but the most common form on social media would be material that is harmful to minors or pornographic in nature. Due to social media content rules and filtering, “you are unlikely to see this successfully posted on social media,” Weaver said.

Note: Profanity is not obscenity, and is typically protected as free speech.

2. Defamation

“Defamation is the false assertion of a fact that causes damage to someone’s image,” Weaver explained. For something to be considered defamation it must be false, an assertion of fact, and something that causes damage. Therefore, opinion statements cannot be defamation and must not be deleted or hidden as defamation.

3. Actual Threats

An actual threat is not protected by the First Amendment for a variety of reasons. Online this presents itself as “a communicated intent to inflict harm or loss on another,” Weaver said. It’s typically a crime and can be charges as such.

4. Spam

Spam comments are quite common on social media posts. To be considered spam, “it has to be something that has nothing to do with your topic, purpose as a business or nothing to do with the subject matter of the post,” Weaver explained. He cautions to apply this definition sparingly.

5. Illegal Activities

“If someone is using your page to commit a crime, attempt to commit a crime, or encourages others to commit a crime,” then it fits in this category,” Weaver said. It can be deleted or hidden. You should also alert law enforcement.

6. Malware Links

A malicious URL link is created with the intent of interfering with the workings of a computer or network. Weaver explained that there is no First Amendment right to link to such a site.

7. Illegal Discrimination

Mark told us that “if someone comments in a way that obviously promotes or encourages illegal discrimination by your agency, then it can be taken down.” There’s no First Amendment right to tell government not to, for example, hire someone born in a particular country or of a certain religion.

8. Copyright

Copyright is intended to protect original creative work. “No one has the right to post something that was stolen from the creator of that work,” Mark said.

What about your policy?

Your social media policy means nothing if it’s not constitutional. Whether it’s deleting/hiding offensive comments or blocking a user, you must abide by the law when doing so – even if you think you are acting according to your agency’s policies. You may find yourself in serious legal trouble if your policy doesn’t align with the First Amendment. That’s why it’s crucial to educate yourself and the rest of your agency on these legal dangers.

Final thoughts:

It is crucial to keep in mind the First Amendment is in force when government uses social media as a communications tool. You should train your employees, implement new policies and hold team members accountable for their actions on social media. Weaver trains agencies around the country on this topic. Violating the First Amendment can have serious legal consequences. During the webinar, Social Media and the First Amendment, Weaver explained that knowing what is protected vs. what is not protected under the First Amendment is crucial to government social media success. This way, you can minimize the inherent risks that come with having a presence and flourish on social media.

Interested in learning more about social media First Amendment Protection? Check out this helpful webinar recording:

  • Social Media & The First Amendment: Learning to Avoid Facebook Foibles and Twitter Trip-upsWebinar Replay

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