In our webinar “The First Amendment & Social Media: Tips to Avoid Risk” with Sr. VP of Marketing and Sales, Brian Carter, we discussed how public communicators can properly navigate opposing viewpoints, accusations, and community concern on social media while adhering to First Amendment rights.

The Temptation to Moderate on Social Media

Since COVID-19 there has been a 41% increase in public media records, according to our Archive of over 300 million records. And with this accelerated rate of content, you would think that there’d be a higher rate of staff to manage it, right? Wrong. In fact, our 2020 State of Social Media Report revealed the opposite with 55% of respondents having a team of one or two to handle all communications.

With this increasing volume and intensity of dialogue, it can be tempting for public officials to moderate social media platforms. In fact, “I’ve had it” moments are at an all time high with the frequency of “competing messages and stakeholder agendas, inaccurate information and rumors, critics and trolls, and team fatigue,” said Carter.

Check out the 2022 State of Social Media in the Public Sector Report

Social Media Content Moderation Defined

Carter highlighted the three main types of social media moderation:

  1. Deleting: The act of removing a user’s comment(s) from your social media accounts. Once deleted, no other user can see or access the content.
  2. Hiding: Blocking a user’s content from showing up on your page without outright deleting it, no notification or other indication is sent to the person who posted the comment.
  3. Blocking: Restricting certain users’ access to social media accounts, which are otherwise open to the public at large. Once blocked, users cannot access or comment on your social media.

The Legality Issues

In all 50 states, social media is a public record, and most public record laws include all communications regardless of physical form. “The interesting thing about public record law is that in almost every instance, the authors wrote the laws to be future proofed. They are designed to focus on content over format. Whether that format is your facebook page,
7.9-Webinar-1st-Amendment-&-Social-Media a carrier pigeon or a town crier – they are all viewed as equal in the eyes of public record law,” said Carter.

In the past, case law around social media and First Amendment rights hasn’t been clear due to social media platforms being private companies not subject to public record law, but now case law is evolving. An increasing trend now establishes agency social media pages or platforms as a public forum, with the caveat that some cases are being labeled “limited” public forums, which does give a bit more moderation freedom compared to traditional forums.

Consequences of Comment Moderation

It’s no surprise that public officials are tempted to moderate certain comments and posts, but the risks associated with these reactions without a policy in place or legal justification “can lead to a litany of consequences, all rooted in bad press, financial surprise and both personal and team impact,” said Carter. The consequences of unjustified social media content moderation can include:

  • Lawsuit against your agency
  • Lawsuit against you as an individual
  • Lawsuit against both you and your agency
  • Erosion of public trust
  • Increased ongoing scrutiny
  • Potential state constitution violation and fines
  • Added stress to you and your team

To put this into perspective, in the last 18 months there have been over 60 lawsuits and claims across the US against local public agencies. That’s one of your peers facing a lawsuit or claim due to unjust online comment moderation almost once per week.

What Social Media Content You Can Moderate

It’s not all bad though. There are certain categories of content on social media that are not entitled to full protection under the First Amendment. These include:

  • Obscenity
  • Direct threats
  • Intellectual property or copyrights
  • Inciting illegal acts
  • Defamation

Carter emphasized the difference between an opinion and defamation, citing an example that “mayor bob went to prison” is much different than “mayor bob is a crook”. He went on to explain that commercial speech is subject to different treatment under the law, and can be excluded from a government page. These safer areas include:

  • Commercial solicitation/advertisements
  • Malware/phishing
  • Personally identifiable information (P.I.I.)
  • Cyber bullying
  • Off-topic/spam

Caution Areas

  1. In terms of deciphering critical comments from opposing viewpoints, “comments that are “on topic” negative or conflict with agency opinion may be tempting targets for deletion, but cannot be taken down just because they are unflattering,” said Carter. One crucial piece of advice Carter offered was the importance of enforcing decisions consistently.
  2. In regards to rumors, lies and misinformation, Carter stated, “comments that offer on topic inaccurate information need to be gently responded to with correct information or clarification.” He continued, “comments that are off topic or are a clear violation of posted policy should be ignored or documented, deleted and captured with your legal team’s support.”
  3. That doesn’t include hate speech though. In fact, there is no universally accepted definition for what is considered hate speech, and the Supreme Court has repeatedly ruled that hate speech is legally protected free speech under the First Amendment.“Sometimes the intent is not always clear and people share content containing someone else’s hate speech for the purpose of raising awareness or educating others. In some cases, words or terms that might otherwise violate our standards are used self-referentially or in an empowering way,” said Carter.The good news is Facebook and other social media platforms have recently tightened their intolerance on subjects like hate speech within their own community standards, and sometimes the best thing to do is to simply report the post directly.
  4. On the topic of hiding versus deleting comments, Carter discussed the fact that hiding may be viewed as an acceptable alternative because it feels less aggressive than entirely deleting a comment. However, hiding can sometimes be worse, as you can potentially risk viewpoint discrimination. “Try to avoid hiding, it’s often best to ignore or delete with valid rational and record capture with legal team support,” said Carter.
  5. Now blocking is a little different. To answer the question of “can I block someone from my agency page?” Carter said, “Not without careful consideration. Blocking a critic is the essence of viewpoint discrimination.” He shared the two main questions you should ask yourself before blocking: 1) Are they protected under the First Amendment?, 2) Are they violating terms of use or policy? With the best advice being to make sure you have your legal teams support, and when in doubt – ignore.

Remember, as no policy is foolproof and case laws are evolving, it’s important to re-evaluate your policy annually with your agency’s legal resource.

Navigating Scenarios

To wrap it up, Carter provided a high-level overview of how you can diffuse critical comments. If a comment is not protected under the First Amendment:

  1. Document, delete and capture
  2. Consider reporting to the platform

If a comment is protected under the First Amendment:

  1. If it’s inaccurate: respond gently with correct information
  2. If it’s sarcastic, satirical, opinionated: it’s best to ignore
  3. If it’s a violation of your policy: document, delete and capture

What You Can Do

  1. Establish a social media policy: A solid policy can help protect your agency & your sanity. Due to evolving case law, review annually or as needed and post prominently. Don’t author one in a silo, use your agency’s legal resources.
  2. Create or utilize a comment moderation guide: A sound commenting policy is all about balance. It should allow moderation of inappropriate and irrelevant content, while still respecting relevant opinions and First Amendment concerns. Train all staff members.
  3. Capture, monitor and retain your social media: Social media is open 24/7 and no policy or moderator is foolproof, so protect your agency by archiving records of every post and comment, especially those you plan on deleting, and monitoring for key terms and phrases for quick resolution.

Interested in more ways to navigate your crucial conversations? Check out these helpful resources:

Disclaimer: The information provided in this blog article and webinar does not, and is not intended to, constitute legal advice; instead, all information, content, and materials presented in this blog article and webinar are for general informational purposes only. Please consult with your Agency Legal Resource for specific guidance in your respective region.

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