Municipal officials must learn new rules of social media interaction

BY KATE COIL
TML Communications Specialist

With its use becoming ubiquitous, more and more municipalities and municipal officials are using social media to reach out to citizens, announce upcoming events and meeting, assist in criminal investigations, alert users to emergency situations, and even livestream council meetings.

However, the benefits of social media also come with a cost with many government entities and officials finding themselves in trouble for their use of platforms such as Facebook, Twitter, YouTube, and others.

Elisha Hodge, a legal consultant with UT-MTAS, said many government officials are not aware that social media postings and even emails can be subject to public records laws and actions such as blocking users or deleting posts can be seen as violations of open records acts and even the First Amendment.

“It doesn’t matter what level the employee when it comes to matters of public record,” she said. “If the content included on a social media site or the social media site itself was made in connection with the transaction of government business, the content is public record.”

The internet really began to emerge as a political force during the 2005 presidential campaigns. By 2008, many politicians had discovered platforms like YouTube allowed them to public campaign materials for free rather than paying for spots on TV. A wide variety of social media platforms had come into play by 2012 with Twitter, Facebook, Instagram, and mobile apps being used by elected officials, city administrators, police and fire departments, and other government agencies to keep in contact with the public.

In her book New Media and Political Campaigns¸ author Diana Owen reported that the internet not only allows constituents and politicians to engage in new ways but also is taking a larger share of the voting audience – particularly younger voters. While most voters still get the bulk of their information from television (67 percent in the 2012 presidential election and 45 percent in the 2014 midterms) the number of voters who turn to the web for information on elections is on the increase (47 percent in the 2012 presidential election and 37 percent in the 2014 midterms).

Of course, the advantages of online citizen engagement come with consequences. In addition to security threats and the occasional online scandal, social media can be murky waters for officials – both elected and non-elected – to navigate, especially when it comes to interacting with the public.
While some officials have argued they have a right to post whatever they want on “personal accounts,” the line gets blurry when officials use these accounts to disseminate government information or state political opinions on issues.

“There aren’t any bright line rules for when an account set up and being used by a municipal official is a personal account versus a government account being used for official business,” Hodge said. “This is especially true when the information disseminated is primarily government-related business. Officials need to be mindful that with these types of accounts, blocking someone or deleting posts and comments could be a First Amendment violation.”

The rules are more clear when the account was set up by the municipality itself or to conduct city business.
“When an account is set up by a municipal employee or official at the request of the municipality or a department head and the account is used solely to disseminate city or town business – there is case law that sets out the parameters for blocking other users and deleting posts and comments on these types of accounts,” Hodge said. “The rules related to blocking users and deleting comments and posts are much more concrete when the account is a municipal account and that the sole purpose of that account is interaction with the public.”

Many municipalities have begun setting out social media policies for employees to follow while legal debates have ensued over whether or not social media profiles belonging to government entities, municipal employees, or elected officials have the right to delete comments or block interactions with other users.

Judges have continually ruled that elected officials cannot block followers on Twitter citing access to information on elected officials as a constitutional right. Suits have been filed by constituents who were blocked by officials including a former mayor of San Mateo, Calif., a county official from Virginia, a member of the Minneapolis City Council, a Washington state senator, and perhaps most famously President Donald Trump.

According to the courts, the First Amendment protects not only the right to free speech on social media but also the right for social media to be used to petition officials to redress grievances.

“A lot of the recent court cases on this issue relate to users being blocked by governmental entities or officials for being critical of something a government department, official, or employee has done,” Hodge said. “Removing a user’s comment or post because the person is criticizing some government action is not advisable. The courts frown upon that, and more often than not, hold that conduct constitutes a First Amendment violation. Even if a user is critical of everything that a department or governing body is doing, and there is no other issue with the post or comment aside from the critical content, the post or comment should not be removed or deleted. Other content such as obscenities and language that is discriminatory is less problematic to take off or remove.”

However, social media platforms are developing ways for users to still allow others to see their content without having any interaction with them personally. Twitter allows users to “mute” and “unfollow” other users, which prevents the first user from seeing anything the second user posts but still allows the second user access to the first users’ posts.
Judges have ruled that officials may use technology to mute or unfollow online harassers or “trolls,” but those individuals must still be able to access statements politicians put on social media.

Deleting comments posted by citizens on social media can also have legal consequences. As a general rule, Hodge said comments should only be deleted if they are abusive, threatening, sexually explicit, obscene, discriminatory, or that contain commercial advertising or links to third party sites.

“Before any user’s comment or post is removed or deleted, the city attorney should be contacted.” Hodge said. “The city attorney can review the post or comment, the applicable case law, and then advise the official or employee on how to proceed. The cases on these issues are very fact specific so the city attorney definitely needs to be involved before any content is removed.”

While many government websites and social media accounts set out disclaimers warning that they reserve the right to delete or remove comments, not all of these policies will hold up in court.

“A lot depends on what a municipality’s disclaimer says, what the municipality’s social media policy says, and how they are applied,” Hodge said. “It is important to not only have a disclaimer, but to also have a tab on the page that takes users directly to the municipality’s social media policy. Both the disclaimer and the policy should be reviewed and approved by the city attorney before anyone is allowed to comment or post on the municipality’s social media account. A municipality’s expectations of those posting or commenting on the social media account and the consequences for not meeting those expectations should be clearly enumerated so that no one has a question about what will and will not be deleted or removed.”

Some social media also permits users to prohibit commenting on their sites and only use social media to put out information rather than receive it. Of course, comments have to be prohibited for all users, not just some.

Because the rules for how government entities and officials can moderate their online presence are often difficult to navigate, Hodge said it is important municipalities create specific social media policies and make sure all users or moderators understand the rules.

“Again, I think it is essential that all municipalities that have a social media presence also have a social media policy,” she said. “Additionally, a municipality should follow and adhere to its policy. If a municipality does not have a written policy about what is acceptable and is not acceptable on its social media accounts, I do not think that the municipality should be deleting anything. A municipality can develop its own social media policy or use the template that MTAS staff developed. A municipality can adopt the template outright or can adopt the portions of the policy that meets the needs of the city.”

When setting these policies, Hodge said cities also need to think about the platform they are using, the purpose of the account, and who will be allowed to use the account.
“From an administrative standpoint, when an account is set up, municipal staff need to determine who the administrator of the account will be and whether there should be multiple administrators,” she said. “There also needs to be some discussion about what the permissions on the account will be. Additionally, the administrators need to be cognizant of the fact that some of the content on the accounts may be subject to the municipality’s records retention schedule. So, some thought needs to be put into how that content will be captured and maintained.”

Hodge said following the simple rule of thinking before posting can also save a lot of trouble in the long-run.
“Officials need to know that the comments that they tweet or post on social media could trigger the open meetings act. Both employees and officials need to be mindful of the fact that tweets and posts could be subject to the public records act, regardless of whether the account is personal or for official municipal business,” she said. “Of paramount importance, in my opinion, municipalities need to ensure that all employees and officials – both elected and appointed – are aware of the municipality’s social media policy, receive a copy of the policy, are trained on the policy, and sign an acknowledgment of such that is maintained by the municipality.”
Additionally, municipalities should not use social media as their single platform for announcing things like upcoming meetings, events, or open hiring positions. Hodge said it is easy to forget that not everyone has access to or uses social media.

“Municipal staff has to remember that not everyone is on social media,” she said. “There are a lot of municipalities that are interested in publishing public meeting notices on social media, which is fine and one way to advertise. But, it should not by the only way that meetings and events are advertised.”
Despite the hazards, Hodge said social media is a great tool for municipal governments when used correctly.
“Social media can be a great tool for sharing accurate, important information quickly,” she said.
For more information on government use of social media and crafting social media policies, visit www.mtas.tennessee.edu/reference/social-media-tool-government.