BB&K Webinar Jun 19, 2019

Update: Social Media Meets the First Amendment

Free BB&K Webinar

The line between free speech and privacy rights for public employees and elected officials has seemed murky — at best. However, we are finding some clarity in recently decided court cases. This Best Best & Krieger LLP free webinar picks up where we left off last year. Attorneys HongDao Nguyen and Christine Wood, the firm’s Director of PRA Services and E-Discovery Counsel, will discuss how the First Amendment interacts with social media platforms and how to apply newly issued federal and California court rulings to every day practice.

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When

Tuesday, June 18
10-11 a.m. PDT

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

“Update: Social Media Meets the First Amendment” generated more questions than the presenters had time to answer. Below are the questions* and their responses:

1. Many now say social media is considered a public record that the public can request. A company called Archive Social is really capitalizing on it to make money. Do you find a service that backs up all of your messages and metadata to be a necessity nowadays for law enforcement agencies?

Neither statute or case law expressly discusses whether social media posts, comments, etc. are “public records.” However, based on the broad definition of a “public record” under the California Public Records Act and the 2017 San Jose v. Superior Court California Supreme Court ruling, social media posts and comments are likely public records if they relate to the public business. “Public Record” and “Writing” are both broadly defined under the CPRA, and the San Jose Court was clear that it did not matter to them where a document was stored for the purposes of determining whether it was a public record — e.g., it could be located in a text message, email and, presumably, in a social media post or message.

Agencies have various options to archive social media content, including, without limitation, outside vendors or staff regularly taking screenshots of agency pages and electronically filing them or periodically printing hard copies. Whatever the archiving method, the agencies should have a records retention schedule that designates how long such documents must be kept and to retain them accordingly. 

2. Can a public official transition the public platform back to a private platform? Or will they need to create a whole new private account?

It could be possible to transition a limited public forum back to a private forum, but that could be difficult to do. Unlike a city council meeting that is open during certain hours for public input then closed, a social media site runs 24 hours a day. If an individual wanted to turn a social media limited public forum back into a private forum, the individual would have to take deliberate steps to, for example, post personal — as opposed to public — items, not transact business on the site and rename the site for an individual user or group. Even then, the public may still claim that the site is a limited public forum.
 
3. How much does this apply to an incumbent's campaign accounts on social media?

This answer depends on what the incumbent’s account looks like and how it’s used. In the Davison v. Loudoun case, the public official tried to assert, among other things, that the subject page was a “campaign” page. But, based on how the public official used the site, the court deemed it a limited public forum.

4. What is the rule on disabling comments for certain types of posts? (i.e. Facebook events or Nextdoor posts)

The safest way to disable comments is to have an agency policy that specifies the types of posts for which comments will be disabled. The policy should be applied consistently, and the types of posts for which comments will be disabled should be viewpoint neutral. For example, it is likely safe to disable posts based on the social media platform being used (as described in the question) because that is not based on any particular post or viewpoint.

5. We are a municipality and our various departments have their own pages. If we create a policy regarding comments on one page, does that have to be the same for all pages?

We’re unaware of any case law or statute governing this issue. But practically, it should be fine to have different comment policies for different pages. The explanation is that each page serves a different purposes, and therefore, should be governed differently. A comparison would be a city council meeting probably has different rules and regulations than a city’s citizen/leadership academy.  

6. Can an elected official have a Facebook page and post district or agency information on it? In other words, can they take a video the agency produced in-house that features staff and post it?

Yes, but the elected (or appointed) official must understand the risk of using their personal Facebook page too often for public business. At some point, their personal page may transform into a public page, which will implicate First Amendment rights for the public accessing the page.
 
7. What are the limits on using the obscenity filters?
 
Very few limitations since obscenity is an acceptable, viewpoint-neutral restriction. However, the agency can create a safety net by having a policy that identifies how the obscenity filters will be used.

*Some questions were edited for clarity.

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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