Most Common First Amendment FAQs

May 19, 2020

Contributed blog by Mark Weaver, Esq.

The following FAQs come from attorney Mark R. Weaver, a media law partner at a Columbus, Ohio law firm that often represents government agencies in court. He formerly taught media law at The Ohio State University College of Law and is now an adjunct professor at the School of Government at the University of North Carolina, Chapel Hill. 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.

 

Why should a government social media manager care about the First Amendment?

The Constitution of the United States outlines certain rights of American citizens while also placing certain limitations on government agencies and personnel. Those limits apply to federal, county, state, and local governments of every kind. Among other things, the First Amendment protects the right of individuals to speak freely — more commonly known as Freedom of Speech. If a government agency or staffer violates the First Amendment free speech rights of someone, it’s possible that the person involved could sue the agency — and the individual, in his or her personal capacity — for money damages from that violation.

 

Can a government employee be personally sued for something that employee does on the job?

Given that government agencies have more money than most individual employees, it’s much more common for a constitutional rights lawsuit to be brought against the agency rather than the employee. But, someone suing could name both the agency and the employee. The agency may or may not choose to defend the employee or cover any money damages the employee is ordered by a court to pay.

 

How can agencies avoid these kinds of lawsuits?

Reading this FAQ is a good start. Attending a training at the Government Social Media Conference (GSMCON) or Social for Safety Conference (S4SCON) on this topic helps, too. Having a good working relationship and regular discussions with your agency counsel is also important. Mr. Weaver often is asked to speak to government agencies on this topic, which may help you convince elected officials, agency heads, or even legal counsel to take the necessary steps to avoid potential First Amendment violations.

 

Facebook, Twitter, Instagram and other social media platforms are all owned by a private company, so how can what a government agency do on its sites violate the First Amendment?

The law in this area is evolving slowly, which is typical for legal issues surrounding technology. But, a line of case law is beginning to emerge that strongly suggests that government agencies that use social media platforms for two-way communication are creating some form of a public forum. When government restricts speech in a public forum in certain ways, it’s possible to violate the First Amendment (and potentially your state constitution, depending on what it says), which could expose your agency to a lawsuit.

 

Can a government agency delete troublesome comments from a post that was put up by the agency on the agency Facebook page?

It depends on what you mean by “troublesome.” As a general rule, most of the comments that government agencies would like to delete are protected speech and can’t be deleted without incurring First Amendment civil rights violation liability. Comments that are critical of the agency may, in fact, have the highest free speech protection and such comments are often seen as “troublesome.”

 

What about hiding the comments? Can a government agency do that?

From the perspective of a potential First Amendment violation, there’s little or no difference between deleting or hiding a comment. In either case, it’s limiting a citizen’s right to advance a viewpoint. Some federal court decisions have specifically held that a person commenting on a social media website has a First Amendment right to have their speech seen by others.

 

Is there anything a government agency can delete/hide?

There are a few narrow categories of speech that does not have First Amendment protection. If you seek to apply one of these exceptions, you should work directly with your agency counsel. Here are the most likely exceptions.

 

  • Actual threats. If your police can legitimately charge someone based on the comment, it has no First Amendment protection. 

  • Defamation. Note that a statement of opinion (i.e. “Homer Simpson is the worst elected official this agency has ever had”) by definition, can’t be defamation. Defamation is generally defined as a false assertion of fact that damages a person’s reputation.

  • Copyright violation. No one can post the intellectual property of another on your social media page. This does not cover links.

  • A suggestion to act illegally. Generally, there’s not a First Amendment right to encourage illegal behavior.

  • Malware. Links to malware are not protected speech.

  • Obscenity. But avoid using the Facebook profanity filter for that purpose, because it hides many terms that are in no way obscene.

 

 Can a government agency delete/hide lies or misleading statements?

That’s an easy one — no. The Supreme Court has ruled that even lies can have First Amendment protection and the term “misleading” is typically in the eye of the beholder. Which means when a standard is subjective, it is likely to infringe on free speech rights.

 

 Can a government agency delete “hate speech?”

No. There is no agreed upon definition for that term that doesn’t involve someone making a subjective determination. Even if there were, the First Amendment gives extra protection to offensive speech.

 

 Can a government agency block someone from its social media feed?

Not because they’ve posted something you don’t like. Perhaps, if the person continues to violate valid rules of your site, you could. Valid means rules that don’t violate the First Amendment. Many, if not most, of the rules (or “terms and conditions”) government agencies put on their social media sites are subjective in nature and may violate the First Amendment.

 

 If the terms and conditions say that people who post on a government social media site agree to follow the rules, doesn’t that mean the government agency can block/delete/hide that person’s comments?

Almost certainly not. Constitutional rights are not waived that easily.

 

 What’s the best way to handle troublesome comments that appear on a government agency’s social media post?

Allow other commenters to call it out. If it’s important enough (such as advancing a probably false rumor) the agency itself can add a comment and provide a link to show that the comment is incorrect.


Mark R. Weaver is a crisis communications expert and media law and First Amendment attorney who has worked at every level and in every branch of government. He regularly defends city and counties from lawsuits. He spoke on Social Media and the First Amendment at the most recent GSMCON and S4SCON conferences and is the author of the acclaimed communications handbook “A Wordsmith’s Work.” Twitter @MarkRWeaver.

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