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First Amendment Q&As with expert Mark Weaver

Jan 14, 2021

Contributed blog by Mark Weaver, Esq.

The following are social media-related First Amendment questions we’ve been hearing from our community, that we asked Mark R. Weaver, crisis communications expert and media law and First Amendment attorney, to help answer. This is not legal advice; it’s simply a discussion of basic First Amendment principles meant to be helpful for non-attorneys who manage government social media accounts. Those who need specific legal guidance should always consult with an attorney.

Social networks, including Twitter, Facebook & Instagram, have banned, disabled or restricted President Donald Trump's accounts from their platforms. Is this a First Amendment issue?

No. While well-meaning people can debate how private companies ought to fairly regulate their businesses and support the free flow of information, the First Amendment only prohibits the government from taking actions that would hinder or chill free speech. Private social media companies (actually all private individuals and companies) are not bound by the First Amendment in any way. 

When an account is suspended/banned/deleted by a social network, how does that impact records retention policies?

That depends somewhat on the public records/FOIA laws in your state. Generally speaking, if an agency is required to retain certain records (e.g., Facebook posts from its page) that duty to retain those records wouldn’t be excused merely because a company suspended or deleted that page. The same would be true if a social media site were hacked and all the agency’s posts were lost for that reason. Work with your agency lawyer. 

What kind of social media content is protected as free speech?

Speech is speech, no matter what vehicle is used to advance the speech. If someone says “puppies are cuter than kittens” or even some other more controversial opinion, the medium in which they say it — Facebook, a billboard, or skywriting — is irrelevant from a First Amendment perspective. The question of what kind of speech is protected is a more complicated question. Stated broadly, all speech is considered protected from government limitation unless it falls into one of the few categories of unprotected speech—obscenity, defamation, actual threats, and spam to name a few.

Is it ever okay for a government agency to delete social media comments? What about hate speech?

Yes, but not very often. If a social media comment consists of clearly unprotected speech (see above) it can be deleted. Importantly, the United States Supreme Court has held unanimously that “hate speech” (definitions vary and all are subjective in nature) is protected by the First Amendment. This is well in line with decades of legal precedent that advances the notion that the most controversial speech is in most need of First Amendment protection. Most importantly, government agencies should be aware that any content-based moderation or deleting of First Amendment protected comments (e.g., deleting comments critical of the agency but leaving compliments up) likely is a civil rights violation and can subject you to substantial legal liability. In some jurisdictions, you MAY be permitted to moderate and delete comments that are clearly “off-topic” from a given social media post. However, this area of the law is still developing and there is greater legal risk in deleting such comments than there is in leaving them up. Have a clear social media policy, archive any comments that you might delete, and check with an attorney who regularly practices in the area of First Amendment law to keep your agency out of trouble.

Mark Weaver is a crisis communications and social media expert with three decades of experience advising clients in at least 25 states and at the highest levels of national government. He counsels public and private sector clients on crisis communications, social media, executive speech coaching, and news media relations. NBC News in Charlotte, North Carolina called Mr. Weaver “one of the nation's foremost experts in crisis communications.”

Mr. Weaver regularly lectures around the country on a wide variety of communications, social media, and legal topics. He spent 20 years as an Adjunct Professor at The Ohio State University College of Law and the Bliss Institute of Applied Politics at the University of Akron. He is now an Adjunct Professor at the School of Government at the University of North Carolina Chapel Hill.

He has an active Twitter presence at @MarkRWeaver.

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