Social Media and the First Amendment

Transcription

1 Scial Media and the First Amendment Benjamin J. Yder Frst Brwn Tdd, LLC Margaret W. Cmey Lcke Lrd LLP Thurs. Feb. 1 & Fri. Feb. 2, 2018 Presentatin Overview Backgrund and develping case law Implementing a strng scial media plicy t avid First Amendment vilatins Best practices fr Twnship elected fficials and emplyees t maintain private scial media accunts Best practices fr Twnships t maintain fficial scial media pages 1

2 The First Amendment and Scial Media First Amendment free speech rights apply t speech n scial media Gvernment-run scial media sites pen fr public discurse are limited public frums fr speech Restricting/remving public cmments, r blcking a user, n gvernment-run scial media sites may be a First Amendment vilatin Hw is a Limited Public Frum Created? Official gvernment scial media sites are limited public frums if they are created with the intentin f allwing the public t pst cmments and prmting public discurse Elected fficials may inadvertently transfrm persnal scial media pages int limited public frums Create impressin that accunt is being run in his/her fficial capacity as an elected fficial 2

3 Develping Case Law Elected fficials persnal scial media pages are frums fr speech, implicating First Amendment rights f users, when they are gvernmental in nature Elected fficials and public bdies they represent are facing lawsuits alleging vilatins f cnstituents First Amendment rights when elected fficials remve a cmment, r blck a user s access, n persnal scial media sites Davisn v. Ludun Cunty Bard f Supervisrs Chair f Cunty Bard f Supervisrs blcked a cnstituent n her persnal Facebk page The cnstituent sued, claiming his First Amendment rights had been vilated Curt cnducted a balancing test t determine if the page was a limited public frum fr speech (weighed facts indicating page was private versus facts indicating it was gvernmental in nature) Davisn v. Ludun Cty. Bd. f Supervisrs, E.D.Va. N. 1:16cv932, 2017 WL , *10 (July 25, 2017). 3

4 Davisn v. Ludun Cunty Bard f Supervisrs Private Factrs Defendant s fficial duties did nt include maintenance f a scial media site Facebk page was nt ging t revert t the cunty when the Defendant left ffice Defendant did nt use cunty-issued devices t pst n the page Defendant s scial media activity tk place utside f the ffice/nrmal wrking hurs Davisn v. Ludun Cunty Bard f Supervisrs Gvernmental Factrs Defendant included her fficial title as Chair f the Cunty Bard f Supervisrs in her displayed name n the page Defendant s cunty and phne number were listed as her cntact infrmatin Page included the fficial cunty website s web address 4

5 Davisn v. Ludun Cunty Bard f Supervisrs Gvernmental Factrs Defendant used the page t hld cnversatins with cnstituents Defendant prmted attendance at events related t her wrk as Chair n the page Defendant ccasinally submitted psts n the page n behalf f the Bard as a whle Davisn v. Ludun Cunty Bard f Supervisrs Gvernmental Factrs The impetus fr creating the Facebk page appeared t be Defendant s electin t ffice (created the page the day befre she tk ffice) Defendant s Chief f Staff helped her maintain the Facebk page 5

6 Davisn v. Ludun Cunty Bard f Supervisrs Curt fund the Defendant had created a limited public frum with her Facebk page Defendant vilated Plaintiff s First Amendment rights by blcking his access t her Facebk page Wilsn, et. al. v. Wallace Cmplaint recently filed in ur wn backyard against Hamiltn Twnship Trustee, David Wallace Jr. Plaintiffs alleged Wallace vilated their First Amendment rights by blcking them frm his Facebk page Cmplaint lists numerus facts surrunding Wallace s use f his Facebk t demnstrate it is gvernmental in nature 6

7 1/9/2018 Wilsn, et. al. v. Wallace Wilsn, et. al. v. Wallace Wallace entered int a cnsent decree with the plaintiffs Stated he wuld nt blck Facebk users frm accessing his page in vilatin f the First Amendment in the future Agreed t pay fr plaintiffs curt csts and attrney s fees 7

8 What s the Big Deal? Elected fficial and/r Twnship he/she represents can be n the hk fr a prevailing plaintiff s attrney s fees and curt csts A curt has discretin t award any additinal damages it believes a plaintiff is entitled Cmplaints f this nature are becming mre frequent 8

9 Ways t Mitigate Yur Risk A scial media plicy. Yu need ne. The plicy shuld cver 3 main areas: 1) Hw elected fficials/emplyees shuld maintain persnal scial media pages 2) Hw the Twnship will run its fficial scial media pages 3) Limitatins n the rights f users n fficial Twnship scial media pages Best Practices fr Elected Officials/Emplyees t Maintain Persnal Sites Official titles shuld nt appear in displayed name Official twnship number/ shuld nt be listed as cntact infrmatin Links t fficial twnship sites shuld nt be prvided Cntent frm fficial twnship sites shuld nt be shared/repsted Branding frm fficial twnship sites shuld nt be cpied n persnal sites 9

10 Best Practices fr Elected Officials t Maintain Persnal Sites Mre likely a curt wuld find an elected fficial s persnal scial media site cnstitutes a limited public frum than an emplyee s persnal site Elected fficials shuld avid discussing matters f public cncern the twnship is invlved in altgether If elected fficials chse t discuss matters f public cncern, they shuld prvide a disclaimer in their bi n the site Best Practices fr Elected Officials t Maintain Persnal Sites Special cncern: Ohi Public Meetings Act rules Requires public fficials t deliberate, discuss, and cnduct public business in pen meetings Advanced ntice f these meetings must be given t the public Elected fficials shuld nt discuss matters f twnship business with each ther n scial media sites, even in their persnal capacity culd result in a vilatin f the Act 10

11 Restricting Emplyees Speech n Persnal Scial Media Pages Emplyees cmmenting n public matters n persnal sites may have strnger First Amendment rights than thse f Elected Officials When public emplyees cmment n matters f public cncern, curts apply a balancing test t determine if First Amendment rights apply Balance First Amendment rights f emplyee v. the state s interest in prmting the efficient perfrmance f public services Als cnsider pssible benefit t the Twnship f having mre lenient restrictins n emplyee use f scial media than thse n elected fficials scial media use Less likely a curt wuld find an emplyee s scial media page is gvernmental may be in the Twnship s favr t permit emplyees t re-tweet and re-pst items frm fficial Twnship scial media sites t prmte Twnship events Best Practices fr Twnships t Maintain Scial Media Sites Decide if yu even want t allw public cmments If yu allw public cmments, the site is a limited public frum users have First Amendment rights Prvide a disclaimer n the site stating views expressed in public cmments are nt thse f the Twnship 11

12 Best Practices fr Twnships t Maintain Scial Media Sites Cmments cannt be restricted/remved because yu d nt like the cntent, but First Amendment rights are nt abslute Reasnable restrictins may be placed n speech Speech may be restricted t a certain tpic addressed by the scial media site Unprtected speech may be banned (discriminatry, prfane, etc.) If yu are unsure if speech is prtected, it is wise t check with yur law directr/utside cunsel befre remving a cmment r blcking a user Best Practices fr Twnships t Maintain Scial Media Sites Designate a persn/team t maintain fficial sites respnsibilities may include: Determining if a cmment shuld be remved/user shuld be blcked Respnding t public cmments n behalf f the twnship Apprving all cntent psted n sites n behalf f the twnship 12

13 Best Practices fr Twnships t Maintain Scial Media Sites Twnships are bund by Ohi Public Recrds law any cntent psted n behalf f the twnship may be a public recrd Gd practice t have a retentin plicy fr cntent psted n fficial scial media sites n behalf f the twnship Scial Media Plicy Overview Outline hw elected fficials/emplyees shuld maintain persnal sites t avid appearance that they are affiliated with the twnship Plicy fr emplyees may be mre lax than plicy fr elected fficials Have a clear prcedure fr maintenance f fficial twnship sites State rules users f twnship sites must fllw Scial media plicy will nt eliminate risk f lawsuits, but prvides the twnship with sme prtectin against liability 13

14 Questins Benjamin J. Yder Frst Brwn Tdd, LLC Margaret W. Cmey Lcke Lrd LLP December 15,