In today’s world, social media platforms have become important channels for government entities to communicate with the public, disseminate information, and solicit feedback.

However, unlike private sector organizations, government agencies must uphold the principles found in the First Amendment, which protects the freedom of speech.

In this blog post, we’ll explore how the First Amendment affects government entities that choose to use social media and the challenges they may face in balancing free speech rights with public accountability.

Understanding the First Amendment

The First Amendment to the United States Constitution reads,

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

While the First Amendment specifically mentions Congress, its principles have been extended to all levels of government, including state and local agencies. And that includes your agency, and mine.

Government Entities on Social Media

Government entities, both big and small, from federal to local, have been able to establish a significant presence on various social media platforms. These platforms, as mentioned previously, provide a direct channel for citizens to access information, engage in discussions, and voice their concerns. However, the use of social media by government entities raises some complex First Amendment questions.

– Of the three types of government forums where does social media fall?
– Content moderation and free speech. For government pages, what’s okay and what’s not?

Let’s explore these now.

Government Forums and Social Media

In the 1980s, the Supreme Court established that there are essentially three different types of public forums. Those forums are: traditional, limited, and nonpublic.

Traditional Public Forum: Imagine a group of people gathering together, holding up signs in a popular park or plaza in your town. This is an example of a traditional public forum. These types of forums are where speech protection is the strongest. Government agencies can do very little in terms of controlling the conversation and altering behavior.

Limited Public Forum: This type of forum is comparable to the public comment section of your agency’s council, commissioner, or board meetings. Members of the public are allowed to stand and express their opinions. These types of forums are considered limited because speech can be regulated. The regulations can include the time, place, and manner of how these remarks are shared.

Non-Public Forum: Both jails and military bases are considered examples of non-public forums where there are no public free speech rights.

So which type of government forum would social media fall under?

The majority of case law suggests that most government social media accounts and pages would probably fall under the limited public forum category.

This leads us to our next question . . .

Content Moderation vs. Free Speech

With the majority of case law suggesting that most government social media accounts probably would be classified as limited public forums, there are two things we must be aware of: viewpoint neutrality and time, place, and manner restrictions.

Viewpoint Neutrality: Government entities must maintain viewpoint neutrality when moderating content on their social media pages. They cannot discriminate against certain viewpoints or engage in content-based censorship, as this may violate individuals’ First Amendment rights and will likely end in a lawsuit.

Be very hesitant about “blocking” individuals who express viewpoints contrary to your organization. Reporting, blocking, or hiding only certain comments or users on social media platforms can be viewed as not being viewpoint-neutral.

Time, place, and manner restrictions: While government agencies cannot censor content based on its viewpoint, they can impose reasonable time, place, and manner restrictions on speech to ensure the orderly operation of its meetings (i.e. public comment section of a council, commission, or board meeting). This also applies, to an extent, to our social media accounts. Such restrictions should be content-neutral and serve a significant government interest.

Generally speaking, the following can be moderated without fear of lawsuit as they are not protected by the First Amendment:
– Obscenity
– Defamation
– Actual threats
– Spam
– Illegal activities
– Links to malware
– Promotes illegal discrimination
– Copyright of an other

It’s Complicated. . .

As we can now see, the First Amendment plays a pivotal role in shaping how government entities use social media. While we must respect citizens’ right to free speech, we also have the responsibility to maintain order and civility in our online spaces. Striking a balance between these competing interests can, and will be challenging, but it’s essential to ensure that our government social media accounts remain open and accessible to all while upholding the principles of free speech and public accountability.

Navigating this complex and ever-changing landscape requires clear policies, transparent procedures, and a commitment to upholding the First Amendment’s values in the digital age.

I feel the need to express that I am not a lawyer, nor am I qualified to give you legal advice. But, I do know this…

Establishing and maintaining a clear line of communication with your general counsel or legal team is key. They will best know how to navigate you and the government organization that you represent through the complexities of the digital world.