How to minimize risk when traversing the First Amendment minefield of social media.

By Taki Flevaris and Paul Lawrence, Pacifica Law Group

As many elected officials can attest, social media platforms such as Twitter and Instagram have become useful for connecting with friends, campaigning, and doing the work of government. But given the intersection of speech and state, city elected officials and staff must keep in mind the First Amendment’s potential application to social media and clearly understand how personal and official accounts are separate. In recent years, courts have been called upon to adjudicate a growing number of lawsuits in this new context. Perhaps the most famous example involved then-President Trump, who was found to have violated the First Amendment’s freedom of speech protections after blocking users from his Twitter account.

Here we summarize key legal standards and highlight three tips for elected officials to minimize their risk—so they can focus on serving the public rather than fending off lawsuits for blocking a user or removing a post.

Note: These are only general considerations; any public official or employee should consult with legal counsel about their particular situation.

Tip 1: Keep personal and official accounts separate.

The primary question in these cases is whether or not an elected official’s social media account is a governmental forum subject to First Amendment scrutiny. A purely personal account does not qualify, because there is no state actor or property involved. But when an official’s account is governmental in nature, the First Amendment can be triggered. Courts engage in a fact-based inquiry to make this determination, considering various factors such as account taglines or identifiers, the source of photos used, account purpose and creation, any use of public resources to access or use the account, and substantive content.

To minimize the potential for liability, elected officials should keep their personal and campaign accounts separate and distinct from official accounts to the fullest extent possible. Personal accounts should include a disclaimer, should contain only personal photos, and should not be managed by public staff or on government devices. The contents of the account should be personal in nature, with no official business conducted on the account. Courts have generally recognized that campaigning is personal rather than governmental, but the line can be blurry and warrants extra caution.

Taking these steps will help insulate personal accounts from First Amendment limits. Otherwise, officials should strive to satisfy First Amendment standards on all accounts.

Officials should strive to avoid censoring specific users and never impose restrictions based on someone’s views, at least on any social media accounts that might quality as governmental.

Tip 2: Avoid censoring other users based on viewpoint.

If a social media account is deemed governmental, the key question then will be whether any private speakers have been unduly restricted or censored. In general, the ability for private users to speak on a governmental account can be broadly limited without violating the First Amendment. An account may be used solely for the government to broadcast its own message, for example, without allowing anyone else to comment. Or an account could be limited to only certain categories of private speakers or topics of discussion, if defined at a general level.

To whatever extent private speech is allowed on a governmental account, however, speakers cannot be restricted based on their particular viewpoints. This tends to be the most important part of the First Amendment inquiry and sometimes turns on the credibility of the explanation for the challenged restriction, whether it involved a block, post removal, or other limit on the user’s ability to receive or broadcast content. To minimize the risk of a violation, officials should strive to avoid censoring specific users and never impose restrictions based on someone’s views, at least on any social media accounts that might qualify as governmental.

In some cases, there might be a need to censor or restrict a single problematic user for reasons separate from their viewpoint. Courts have upheld reasons such as excessive volume or repetition, posts that are off topic, substantial interference with the flow of communication, obscene sexual content, or targeted threats. Note that profanity is sometimes treated as a viewpoint and should be approached with caution, but it probably can be restricted when children are likely to be in the audience.

Imposing restrictions for such reasons should be done carefully, including by documenting the basis and surrounding context and keeping a general record of content management over time to show consistency. It can also help to clarify in advance what categories of private speech will be allowed on the account and potential grounds on which users or content will be restricted. Likewise, it might help to identify and explain the basis for any restriction at the time it is imposed.

Tip 3: Tailor the scope and duration of any restrictions imposed.

The other key factor under First Amendment review likely will be whether any restrictions imposed were reasonable. This will depend on the circumstances.

In one case, for example, an indefinite ban from a social media account for inappropriate activity was deemed unreasonable because the offending user had no opportunity to return and comply in the future. To avoid such concerns, in each case restrictions should be imposed in an incremental and proportionate manner, including with regard to duration, based on the particular concerns at issue.

Bottom line: Elected officials should make clear that their personal and official accounts are separate, should not impose restrictions based on viewpoint, and should ensure that any restrictions are appropriately targeted. When in doubt, consult with legal counsel to minimize the risk and avoid needless litigation.

Pacifica Law Group is a regional firm that specializes in helping state and local government and elected officials navigate concerns related to free speech, defamation, public records, and related legal doctrines.

For more information: pacificalawgroup.com.