BB&K Webinar Jul 11, 2018

Social Media Meets the First Amendment

Free BB&K Webinar

Although it may not feel like it, public employees and elected officials still maintain their rights to privacy and free speech, but is there a bright line? In this webinar, Best Best & Krieger LLP attorneys HongDao Nguyen and Christine Wood discuss how the First Amendment interacts with social media platforms and how it applies to recent federal and state rulings in every day practice.

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Wednesday, July 11
10-11 a.m. PDT


"Social Media Meets the First Amendment" [PDF]
"Social Media Glossary" [PDF]
To view a recording of the webinar, click here.

“Social Media Meets the First Amendment” generated a variety of questions. Due to time constraints, we were not able to answer them during the webinar. Here, HongDao and Christine provide responses*:

1. Do the same rules apply to a city commissioner? Public arts commissioner in particular.
Yes, the same rules would likely apply to a city commissioner, city employee, etc. Though the case law we went over in the webinar mainly speaks to public officials (council members), it is possible that a city commissioner could also create a social media account that a court could find has been transformed into a public social media account.

2. Do you think the retirement of Kennedy impacts the importance of the language in Packingham?
It’s difficult to predict how a new justice will affect future First Amendment decisions. What we know is that Justice Anthony Kennedy (who retired at the end of the last term) delivered the opinion, which was joined by justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justice Samuel Alito filed a concurring opinion that Chief Justice John Roberts and Justice Clarence Thomas joined. (Justice Neil Gorsuch took no part in the consideration or decision.) The concurrence agreed with the main holding of the majority but expressed that the majority went too far in its opinion. It’s unclear how a new justice and  Gorsuch will land on issues like those presented in the Packingham case.

3. Do you recommend that government clients archive their social media posts rather than relying on the platform to keep them for retrieval if needed?
Yes. As we saw in the Greben v. City of San Mateo case, a plaintiff sued (among others) the City of San Mateo Police Department for not archiving its Twitter posts. In that case, the SMPD’s Twitter was hacked and a number of Twitter messages deleted. The plaintiff accused SMPD of violating the plaintiff’s rights to review those deleted messages under the Public Records Act. Though the case settled, government agencies may be liable if they do not archive their social media posts themselves.

4. Is there a concern with using the “hide” feature on Facebook posts?
Yes, if the Facebook page has become an official page and/or a public forum. The “hide” feature removes posts from the user’s Facebook timeline, essentially removing that hidden user’s comments/viewpoint.

5. My personal Facebook account/profile is authorized as admin for our agency's page. Is there any issue with this? There isn't really a way to maintain a Facebook page otherwise.
This should be fine. The cases we discussed during the webinar took into account who the account administrator was for private accounts to consider whether the account had turned into a public account. In your case, however, you indicate that this is already a public/agency account, so there is less concern about who is administrating the account.

6. What about not allowing posts to timeline or comments on a post, period?
The government is allowed to disallow all public comments and posts. Agencies get into hot water when they allow some posts and disallow others. The latter is seen as not being “viewpoint neutral.” If the agency allows some posts and disallows others, the agency should have a good, viewpoint-neutral policy guiding when a comment or post can be removed.
7. If an admin hides a comment on a governmental Facebook page, what should be the next steps in order to be in better compliance?
If an agency administrator is hiding Facebook comments in a non-viewpoint neutral way, one way to address the issue is to “un-hide” the comment. However, as we have seen in the cases that we discussed, even hiding a comment or blocking someone for a short period of time can give rise to a claim. As mentioned above, if the agency wants to hide comments, then the agency should implement a viewpoint-neutral policy that guides in what instances comments may be hidden.

8. So, if a city has a very detailed policy about what are and are not official city pages, those exclude all council member pages, but a council member represents that their page is an official city page, what's your best guess as to that council member's ability to bind the city.
Even if an agency has a detailed policy that provides that public officials’ private social media pages are not government accounts, it appears that the public official could still transform the personal page into a public one. The agency’s liability will probably be less because of its policy disclaiming such conduct, however.

9. Context: There are "personal" Facebook pages and then "sub-pages" to the personal page that can be created by an individual to create additional pages for various purposes... If an individual who is also an elected official chooses to create a sub-page to his/her personal page for the purpose of promoting his/her activities as a candidate/elected official, why would that sub-page not be considered a political campaign page and, therefore, not require that anyone be able to post to it? The point of a political campaign website/social media page is to present the candidate/elected official in the most favorable light possible... why would a candidate/elected official be required to include posts/comments made by their political opponents?
We have not reviewed any case that discusses this fact pattern, but our guess is that a candidate’s social media campaign page(s) should not be imputed to the government.

10. Does calling one's page “official” make it official? Does calling my dog a “cat” make my dog a cat?
As we discussed in the webinar, the courts would probably look at the totality of circumstances to determine whether a public official’s personal social media account has become an official or governmental one. For example, if a councilmember set forth his Facebook account as “Councilmember John Doe’s Official City Facebook” account, but all he posted was pictures of his grandkids, then it would probably be difficult to deem the account a “public” account. In the same vein, if a councilmember didn’t call the account his or her “official” account, but conducted official agency business on the account, that would be a factor that a court would likely consider.

11. Are First Amendment rights really limited if constituents/political opponents can still communicate with their elected officials via official government email and/or during public comment period at the public meetings??
Though constituents may have alternative channels of communication/other places to express their opinions, once a “place” is deemed a public forum (even if that place is a social media page), the cases provide that the constituents have First Amendment rights to that forum. Think of it this way: If someone is thrown out of a public park or a city council meeting because of his particular viewpoint, he would likely have a  First Amendment grievance against the agency, even if he could still email the city council about his opinions.

12. Why would a private citizen’s retweet of a government actor transform the contents of the original tweet into non-government speech?
Even though it’s a retweet of a tweet, the private citizen’s retweet is still his or her own speech. Here is footnote No. 21 from the Knight case on retweets: “A retweet appears ‘in the same form as it did on the original [sender]’s timeline,’ with the name, picture, and handle of the original sender rather than the retweeter, and with an additional ‘notation indicating that the post was retweeted’ above the tweet in small font…. Nonetheless, in the same way the President’s retweeting of a tweet sent by a private individual likely renders the President’s retweet government speech, a private individual’s retweet of a tweet sent by the President is likely private speech rather than government speech.”
Think of it this way: Say you heard a great joke on the radio in the  morning, and later that day you came home and repeated the joke to a family member. Though you repeated someone else’s joke, the joke you told is still your speech, even in the re-telling.  

13. Must social media records be stored in print form? Or is electronic format acceptable?
Records retention laws generally provide the length of time that a record must be kept but not what form it has to be kept in.

14. Do the same rules apply to a political candidate running for office?
Communications by a political candidate are not governed by the traditional public forum analysis and, therefore, the rules discussed during the webinar do not necessarily apply. Although the analysis is quite different, the First Amendment does cover political speech, which includes candidate discussions. (See generally Brown v. Hartlage (1982) 46 U.S. 45.)
15. Does record retention apply to all comments posted by members of the public?
An agency has some latitude in defining how it retain records for its social media sites. A conservative approach would be to retain all comments for the period designated by the retention schedule. It would be best to consult your legal counsel for specific advice on the retention provisions in your social media policy.
16. Also, are government agencies required to retain records of social media posts by elected officials on "private" accounts?
Government agencies would not be required to retain the records of social media posts by elected officials on their “private” social media accounts, unless the post could be categorized as a public record, as defined in San Jose v. Superior Court of Santa Clara County (2017) 2 Cal.5th 608. Please consult your legal counsel if a question remains about a specific post.
17. I see this a lot on Twitter: "I am X and I do Y for Z company. Tweets are my own. Retweets do not equal endorsement." Does that help?
It’s a little unclear what problem the disclaimer is trying to address. If public employees or elected officials want to be sure they do not transform their private social media accounts into public forums, a similar disclaimer may be informative to the court, but it would not completely settle the issue if the user actively operates his or her personal account under the color of state law.

18. As a police agency, we issue cell phones to our officers. However, I know that they also carry their own cell phones while on duty. I also know that officers will, and have, requested information through their personal phones regarding an incident they were investigating. Can a citizen make a request for contents from the officer’s phone?
Yes, if the officers are using their personal cell phones to perform their duties as an officer, the public records contained on the officers’ personal cell phones are subject to the Public Records Act. However, the records may be exempt for disclosure for several other reasons provided for in state and federal laws.

19. Does BB&K have a recommendation for a constituent message page identifying all the issues where a person be blocked?
It would be best to consult your legal counsel for specific advice on any provision in your social media policy that permits blocking.

20. What if employees indicate they work for a public office on their Facebook — would that be considered public forum if they share news from the office?
Not necessarily. The act of sharing information that is readily available to the public with the Facebook user’s friends is not necessarily enough to transform a private social media account into a public forum. A court may look for other factors — like whether the employee directs the public to the Facebook page to engage them related to their agency’s business, or whether they have their agency contact information listed in their Facebook profile. Please be sure to consult your legal counsel if a question remains about a specific employee’s Facebook page.

21. How do the concepts you talked about differ when talking about an official agency page versus an individual elected official? If at all...
An official agency page is undoubtedly a limited public forum to which the First Amendment analysis would apply. The social media page of an individual elected official may also be subject to this analysis if the official designates the page as their official page through which they will conduct the duties of their elected office, or if they operate as such regardless of whether they make that designation.

22. If a board of director uses a Twitter/Facebook page for his official position and tags the agency in his post, I am assuming that this could cause a problem for the agency if there were any issues with First Amendment rights?
Theoretically, the agency could possibly face some exposure if it is tagged in a post sent by an official that contains a First Amendment violation, but the risk of that would be based on several other factors.

23. How does the court determine the amount of money the "injury" of First Amendment violation warrants (e.g., for blocking from social page)?
We have not seen any recent judgments related to an agency’s violation of a social media user’s First Amendment rights, so it is hard to predict how a court will determine damages for such an injury. In the webinar, we discussed the case of Laurenson v. Hogan, in which the Maryland Governor blocked hundreds of individuals from the Governor’s Facebook page. The case was settled when, among other things, $65,000 was paid out to four plaintiffs. This settlement does not create a court precedent for damages, but shows that an agency may be at risk for liability in these kind of cases.

24. In an educational environment, can comments that specify slanderous/bullying language naming a minor child be blocked?
Laws that govern speech in K-12 educational environments are incredibly different. Generally, schools are nonpublic fora (or closed public fora) and restrictions on speech in this type of forum — like the deletion of posts that are deemed to bully or slander a student — will be upheld as long as they are reasonable and not based on a desire to suppress a particular viewpoint. (See generally Perry Education Association v. Perry Local Educators’ Association (1983) 460 U.S. 37; see also Hazelwood School District v. Kuhlmeier (1988) 484 U.S. 260.) Please be sure to consult your legal counsel if questions remain around speech restrictions within social media sites owned or controlled by K-12 school districts.

25. If a councilman is an administrator of a Facebook page, posts a city newsletter and has MANY city people blocked — LEGAL?
It would be hard to make a determination based on these facts alone. The acts of controlling a Facebook page and posting a city newsletter may not be enough to transform a private social media account into a public forum. A court may look for other factors. Please be sure to consult your legal counsel if a question remains about a specific councilmember’s Facebook page.

26. Is it appropriate for the government entity to create a policy prohibiting an elected official from maintaining a website in his official capacity not operated by the government?
Possibly not. Remember, the Knight Institute v. Trump case specifically stated that elected officials do not forfeit their First Amendment rights by holding office. An agency might need to have a compelling reason for restricting an elected official from being able to communicate with his/her constituency in what has been described by the courts as the “modern public square.” (Packingham v. North Carolina (2017) 137 S.Ct. 1730, 1737)

27. How do you retain social media posts and comments electronically?
You can save them as PDF files and store them on a cloud-based or on-premises storage network. In fact, you can establish a procedure that every week or month, someone will download and save the posts to the network that is organized by date. Just be careful to also determine a retention schedule and destroy the records according to that schedule so as not to retain records any longer than necessary to comply with all applicable laws. It would be best to consult your legal counsel for specific advice on the retention provisions in your social media policy and procedures.

*Some of the questions were edited for clarity.

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This webinar is approved for minimum continuing legal education by the State Bar of California in the amount of one (1) hour of General Participatory credit. Best Best & Krieger LLP certifies that this activity conforms to the standards of approved educational activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education. Best Best & Krieger LLP is a State Bar of California Approved Provider, #1035. Please note that CLE credit is only available to those who participate in the “live” webinar and Best Best & Krieger LLP is unable to provide credit to those who choose to view the webinar recording.

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