RMLUI Legal Corner: Social Media and the First Amendment

by Elizabeth Garvin, AICP, Denver, Colorado

Public involvement is critical to the local planning process. Planners need to hear from residents, businesses, and community members to determine how to proceed with a wide variety of issues, such as how growth should be addressed, where public transportation should run, and whether public resources should be used to enhance community projects.

Until fairly recently, planners gathered local input in person, via presentations given over numerous donut breakfasts, through workshops held in church basements, and while smiling from a booth at the state fair/art show/new recreation center opening. When the issue being discussed was relatively flashy (new trains!) or potentially divisive (new adult use!), public involvement took care of itself, with spill-over crowds and media coverage. When the issue being discussed was less enticing to the average resident (new sewage treatment plant!), convincing people to attend meetings to discuss details and logistics was typically an uphill battle; finding anybody under the age of 30 in attendance was unheard of.

Enter social media. Over the span of the last 20 years, local planners have made very adept use of a variety of new ways to invite comment and feedback to proposed plans and policies. The number of platforms for social media use is significant and only growing, including: blogging (Blogger, WordPress); micro-blogging (Twitter, Tout); social networking (Facebook, Linked In); photosharing (Flikr, Instagram); video-sharing (YouTube, Granicus, Vimeo); idea and feedback tools (MindMixer, UserVoice) and an assortment of information posted on the local government website. For the purposes of sharing information, inviting participation, and including the public in civic discussions, social media has been put to great use.

With the opening up of so many discussions, however, planners are also creating public spaces that may be subject to the standards of the free speech requirement of the First Amendment.1 If planners and other local officials are not intentional about the type of public space they create in social media and the specific rules they establish for that space, they may lose their ability to keep the conversation centered around identified topics as well as their ability to keep trolls2 and other toxic internet inhabitants from disrupting the conversation altogether.

Creating a Public Forum

According to the Supreme Court, a public forum (courts refer to a singular “forum” or plural “fora”) is typically created “where a government property or program is capable of accommodating a large number of public speakers without defeating the essential function of the land or program.”3 There do not appear to be any cases available yet that directly identify when a local government’s actions in a social media setting amount to the creation of a public forum. Because most local governments are not going to stop using social media until a court describes the applicable rules, we can look at similar First Amendment cases that will likely provide useful guidance for now. When thinking about how the law is applied to social media, one important aspect of the definition provided at the beginning of this paragraph is the Court’s reference to “property or program.” In other words, a public forum does not have to be a physical place. Public fora have been found in schools and theaters as well as student newspapers and election pamphlets – expanding this to include Facebook or Twitter may be the logical next step.

The Court has recognized three categories of public fora where speech is expressed, each of which may be subject to a different level of governmental restriction. The first and most wide-open venue is the “traditional public forum.” This may be a public sidewalk, a local park, the area in front of the town hall, or other location “which by long tradition or by government fiat have been devoted to assembly and debate. . . .”4 To identify a traditional public forum, courts have considered factors such as: (1) how the location is being used/has been used, (2) government ownership, (3) available public access, and (4) how the area is perceived by the public.5 All of these factors may be equally applicable to a park and a Facebook profile.6

Local restrictions on speech are most limited in a traditional public forum.7 Regulations based on the viewpoint expressed in the speech are prohibited. “Content-based” regulations may be permitted only if they are narrowly tailored to reflect a compelling governmental interest.8“Content-neutral” regulations that apply to restrict the time, place, and manner of public expression without consideration to content are permitted provided those regulations are narrowly tailored and serve a significant government interest.9

The second type of venue is a “designated public forum,” so named because it is not a traditional forum but has been “designated” by the local government as a place for public speech.10 In the physical world, that might mean holding a public meeting in a non-traditional location, such as the local theater. A designated public forum can be either limited, in which restrictions on topics and comments related to the site’s purpose are established at the outset, or unlimited, which functions like a traditional public forum but can be shut-down by the local government at any time. A key factor in determining the scope of a designated public forum is the intent expressed by the local government at the time the forum was established. Courts have upheld reasonable regulations limiting speech in designated public fora,11 but have not upheld restrictions based on viewpoint.12

The third type of venue is a “nonpublic forum.” This forum is not open for public discussion and the local government typically does not provide public access to this forum.13 Nonpublic forum is the default category for everything that is neither a traditional public forum nor a designated public forum.  The rule repeated by the Court across multiple nonpublic forum cases is: “[w]e have recognized that the First Amendment does not guarantee access to property simply because it is owned or controlled by the government.”14 Courts have interpreted nonpublic fora to include: airport terminals, employee mail systems, and military installations.

Local Government Forum Designation for Social Media – Policy Considerations

When using a traditional website, a local government typically does not open the site to public comment or the posting of materials by non-governmental officials. When setting-up a social media site, such as a Facebook Fan Page, both of these actions are possible and this is what may distinguish the site as a public forum. Before going live with the site, local government officials should first consider what category of public forum they want to establish and create a set of policies for the site that reflect this decision.

The policy should start by designating the scope of the site and identifying the type of public forum the local government seeks to create. If the site becomes the subject of litigation, this statement will provide the court with evidence of the local government’s intent as it created the site. A court will most likely also look at the local government’s control over public comments and postings, and so the site’s public access must be designed to line-up with the intent statement. The platform of the site may determine the site administrator’s ability to control content and that should be taken into account when choosing a social media format. For example, at this time there is no way to turn off Facebook comments, but it is possible to limit access to start new topics; this might make a Facebook Fan Page an inappropriate choice for some types of limited public fora but acceptable for others.

With either a traditional public forum site or a designated public forum site there should be a general policy that requires comments to be respectful and prohibits comments that are degrading, offensive, obscene, promote illegal conduct, incite violence, or create a safety or security risk. On a designated public forum site, the policy should also require that comments and/or postings be relevant to the purpose of the site or they will be removed. For example, if a social media site is created to discuss the location of new roads necessary to access an oil field that was recently approved by the local government, the policy should state that the site discussion is limited to the location of the new roads and not the long-term consequences of fracking. Once the social media policy is in place, the site administrator should make a best effort to interpret it broadly, inclusively, and consistently with respect to substantive comments.

The goal is to foster conversation in much the same manner as an “in-person” meeting, meaning that it is probably better for the site administrator to err on the side of allowing comments that are “sort of” on-topic rather than reject the content. The site administrator may not reject critical comments that otherwise meet the standards of allowable content. And where misinformation is posted, the site administrator may issue a correction or comment. While we are waiting for the courts to consider how the First Amendment will apply to social media, the best course is to let the conversation keep moving.

The City of Seattle summarizes this approach well in its social media policy:

Users and visitors to social media sites shall be notified that the intended purpose of the site is to serve as a mechanism for communication between City departments and members of the public. City of Seattle social media site articles and comments containing any of the following forms of content shall not be allowed:

  • Comments not topically related to the particular social medium article being commented upon;
  • Comments in support of or opposition to political campaigns or ballot measures;
  • Profane language or content;
  • Content that promotes, fosters, or perpetuates discrimination on the basis of race, creed, color, age, religion, gender, marital status, status with regard to public assistance, national origin, physical or mental disability or sexual orientation;
  • Sexual content or links to sexual content;
  • Solicitations of commerce;
  • Conduct or encouragement of illegal activity;
  • Information that may tend to compromise the safety or security of the public or public systems; or
  • Content that violates a legal ownership interest of any other party.

These guidelines must be displayed to users or made available by hyperlink. Any content removed based on these guidelines must be retained, including the time, date and identity of the poster when available (see the City of Seattle Twitter, Facebook and CityLink standards).15

Elizabeth Garvin, AICP, is an attorney with Spencer Fane & Grimshaw. She serves on the Regional Board for the Rocky Mountain Land Use Institute.

Endnotes

  1. “Congress shall make no law … abridging the freedom of speech.” This requirement is made applicable to states and local government through the Fourteenth Amendment.
  2. In Internet slang, a troll is a person who sows discord on the Internet by starting arguments or upsetting people by posting inflammatory, extraneous, or off-topic messages in an online community (such as a forum, chat room, or blog), either accidentally or with the deliberate intent of provoking readers into an emotional response or of otherwise disrupting normal on-topic discussion. Source: http://en.wikipedia.org/wiki/Troll_(Internet) (citations omitted)
  3. Pleasant Grove City v. Summun, 555 U.S. 460, 462 (2009).
  4. Perry Educ. Ass’n v. Perry Local Educ. Ass’n, 460 U.S. 37, 45 (1983).
  5. This factor has been interpreted in different ways by different courts. Compare ACLU v. City of Las Vegas, 333 F3d 1092 (9th Cir. 2003)(privately owned sidewalk used by public found to be traditional public forum), and Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249 (10th Cir. 2005)(former public street and sidewalk became private and non-public forum when sold to private group).
  6. Cornelius v. NAACP Legal Defense & Educ. Fund, Inc. 473 U.S. 788, 801 (1985)(forum identified as federal government charitable fundraising campaign, not federal workplace).
  7. Carey v. Brown, 447 U.S. 455, 461 (1981).
  8. Cornelius at 800.
  9. The leading example of the Supreme Court upholding this type of regulation is Hill v. Colorado, 530 U.S. 703, 719 (2000) (physical distance limitations placed by state statute on “sidewalk counseling” in front of health care facilities not a regulation of speech but a “regulation of some places where the speech may occur.”)
  10. Pleasant Grove City v. Summun, 555 U.S. 460, 469-470 (2009).
  11. White v. City of Norwalk
  12. Good News Club v. Milford Central School, 533 U.S. 98 (2001) (“[s]peech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the subject is discussed from a religious viewpoint.)
  13. Perry at 46.
  14. Id.
  15. http://www.seattle.gov/pan/socialmediapolicy.htm (accessed March 6, 2014)

Published in the April/May 2014 Issue

Paul Moberly