Government social media use isn’t going away any time soon. Local government officials and agencies frequently use social media to provide general community information, to respond to resident concerns or requests, and to keep the public informed and updated regarding local issues or events. Social media can undoubtedly be a helpful tool in facilitating communication between a local government and the community.
But local staff and officials may use social media differently depending on their position and responsibilities. For example, a mayor or councilmember’s social media messaging may differ from an employee’s based on political perceptions. Elected officials may also feel pressured to use social media in response to resident concerns or to “get ahead” of anticipated issues.
Differences in social media use can lead to confusion over how an agency can properly use social media to further its messaging goals. Compounding this confusion is the fact that many elected officials and agency staff use and maintain personal social media accounts in addition to (or sometimes even instead of) accounts that the agency controls and manages. While individuals maintain an ability to speak freely on social media in their personal capacity, a local government may want to control messaging.
This blog addresses common legal questions around social media use for local governments, their staff, and elected officials.
First Amendment “Free Speech” Questions
Below are some of the more common questions we get involving First Amendment rights and social media usage/sites.
Can a local government’s social media page disable or restrict public comments or posts?
Social media can be an effective communication tool for local governments, but public comments or posts on a government’s social media page may include off-topic statements, business-related advertising, or language that is offensive, vulgar, profane, or even threatening. These issues may prompt local governments to explore limiting or even disabling public posts or comments on their social media pages: Can this be done?
The short answer is yes, as long as the government doesn’t impose public comment restrictions in reaction to viewpoints expressed by members of the public in their comments on the government’s social media site.
A government’s ability to regulate the content of public speech can depend on where members of the public are speaking. Government agencies have the toughest time regulating public speech content in locations called “traditional public forums.” These locations have long histories of free and open public speech and include places like public parks, sidewalks, and streets.
While the public commonly and increasingly interacts with government social media through posts or comments, social media’s relatively recent history means it is not (yet) a traditional public forum, so local governments can choose to restrict public speech on their social media platforms or even make their social media pages “one-way” communication channels by disabling public posts and comments entirely.
In fact, a local government’s failure to regulate its social media pages can increase its potential for First Amendment trouble. Local governments that lack clear and consistent social media regulations have to individually censor public posts or comments on their social media pages by deleting posts or blocking challenging users. This selective and potentially haphazard speech regulation only increases a local government’s potential for First Amendment violation claims.
Local governments can reduce their potential First Amendment liability by enacting social media policies that:
Limit public posts or comments to pertinent discussion topics,
Prohibit offensive or vulgar language or images,
Prohibit unlawful threats or discussions of criminal acts,
Restrict or prohibit commercial advertising or business solicitation, and
Indicate that the failure to comply can lead to the removal of a post and/or a block against future posts.
(For example, MRSC has a social media comments policy, which is then linked to its social media accounts.)
But to comply with the First Amendment, social media policies must be “viewpoint neutral.” In other words, local governments cannot restrict or limit public posts or comments just because they disagree with a poster’s position on a particular topic or issue. Local governments must apply their social media policies consistently and regardless of a poster’s viewpoint about a social media discussion topic.
Can local governments regulate how their employees and officials use personal social media?
Local governments can enact and enforce policies regulating how their employees and officials use the government’s social media platforms, but can they also regulate how personnel or elected officials use personal social media pages?
To some extent, yes. Local government personnel policies can restrict employee personal social media use, but such policies must properly balance an employee’s free expression rights with the government’s “employer” interest in avoiding communications that undermine public confidence, impair working relationships or job performance, or inhibit government functions.
Government employees have the strongest social media speech rights when posting about workplace problems or “matters of public interest” that generate heightened public attention. Notable court cases have disallowed government discipline against employees that criticize employee pay, discuss potentially illegal workplace conduct, or speak about high-profile incidents, like an attempted presidential assassination. Conversely, court cases have also upheld government discipline when employees make purely “racially charged” personal social media statements.
A local government’s internal social media policies should clearly articulate how a restriction will achieve the government’s interest as an employer and account for an employee’s ability to freely make personal statements about workplace issues or subjects of wide public interest. Failure to properly balance these concerns in agency policy can lead to employee claims of First Amendment “retaliation” if the statements lead to disciplinary action.
Regulating personal social media use by local government elected officials is slightly more challenging because elected officials aren’t directly subject to most government personnel policies (including those related to social media use). However, elected officials can enact their own rules about social media use, either by voluntarily adopting their government’s personnel social media policies or by enacting social media policies specific to the governing body (for an example, see Vancouver’s social media policy for councilmembers). Either option can help elected officials avoid First Amendment concerns and other legal issues related to social media use.
Is a local government responsible for an elected official’s personal social media use?
The answer depends on whether the local government authorized the official’s social media use and whether the official used that authorization to further their official responsibilities when posting on social media.
A local government is not responsible for an elected official’s purely personal social media activities, but it can face First Amendment liability for the official’s work-related social media use. Questions about a local government’s social media responsibility often arise when a government official mixes personal and work matters on social media, creating confusion over whether the official’s social media use is in a personal or official capacity.
A recent U.S. Supreme Court ruling clarified that local governments only face First Amendment responsibility for their officials’ social media use if both of the following can be proved:
The government authorized the official’s social media use, and
The official used the government’s authorization during the social media exchange.
To fully understand this, we need to look at each proof requirement in more detail.
When does the government “authorize” an official’s social media use?
Authorization requires more than an official’s personal social media page looking and functioning like an official government page. Instead, authorization requires either:
A formal government act (like an ordinance, resolution, or policy) giving the official speaking authority on the topic discussed in the relevant social media post; or
A history, custom, or usage showing that the government has authorized the official to speak on the topic discussed in the relevant social media post.
When does an official “use” the government’s authorization on social media?
This requires proof that the official posted on social media to further their official responsibilities. Officials who use social media for purely personal reasons speak with their “own voice.” Social media page labels like “This is (elected official’s) personal social media page,” or disclaimers like “The views expressed in my posts or comments on this page are strictly my own” create a heavy presumption that an official’s social media use is personal and not representative of the local agency.
To further reduce potential responsibility for an elected official’s personal social media activities, local government codes or policies should outline which officials or staffmembers are authorized to communicate on agency matters, as well as the types of matters these individuals can discuss. The cities of Medina and Camas have clear policies on agency use of social media, including which staff are designated to oversee such use.
Local governments should also encourage their officials to adopt disclaimers and page labels for personal social media communications, such as those suggested above. Our Social Media Policies webpage contains additional guidance regarding government social media policies, with policy examples from numerous jurisdictions.
Public Records Questions Related to Social Media
MRSC also receives many questions about how the Public Records Act (PRA) applies to social media.
Are the personal social media posts of agency staff or elected officials public records?
It depends. Questions about whether and how the PRA applies to a staffmember’s or elected official’s posts on personal social media focus on whether these posts are within the individual’s “scope of employment.”
Importantly, scope of employment means more than just “work related,” and court decisions establish that government staff/officials generally do not act within their employment scope simply by posting about their job on personal social media. Instead, courts consider the following three questions:
Did the employee’s or official’s job generally require them to make the post?
Did the government employer specifically direct the official or employee to make the post?
Did the post further the government employer’s interests?
If the answer to any of these three questions is “yes,” the personal social media communications of an elected official or agency staffmember can be public records subject to disclosure.
Further, personal social media posts could also become public records if a local government employer uses the posts for official purposes. In one notable case, an employee’s personal emails became the agency employer’s public records when the agency used them to formally defend its decision to terminate the employee (for excessively using personal email while working).
Can an agency retrieve a public record from a personal social media account?
If public records are requested, and such records could reasonably be located in the personal social media account of an agency staffmember or elected official, the responding agency could theoretically ask the individual to hand over their personal device(s) for a responsive records search. But doing this can be intrusive and create other issues beyond public records questions.
As a more workable alternative, courts have allowed agencies to let employees and officials search their own personal devices for responsive social media records, give the records to the agency, and then sign a written affidavit (called a “Nissan” affidavit, named after Nissan v. Pierce County) that the staff or official has done so. This affidavit must list the sites (social media, email, etc.) the official or employee searched and the search terms they used to locate any responsive records.
Social Media Records Retention Issues
A public agency’s legal requirement to retain its records presents another challenge when employees and officials use personal social media for official business.
RCW 40.14.010 defines “public records” requiring agency retention as any document regardless of form that is made or received by a government agency in connection with the transaction of its official business. Official statements made on personal social media sites can meet this definition, requiring local governments to retain them.
State regulations (WAC 434-662-030) provide that agencies must retain electronic records like social media posts as though these were paper copies. Depending on the content of a social media post, an agency may have to capture and retain this post for a number of years or longer.
Since the ability to retain posts on individual social media platforms is not always consistent or reliable, my colleague Sarah Doar recommends that local governments use specific records archiving technology to ensure proper retention of any social media posts that meet the public records definition (See the blog, Social Media Policy Questions for Local Governments to Answer).
Use of Social Media For Campaign Activities
Local governments should discourage elected officials from using personal social media for work matters to reduce potential First Amendment or public records liability. However, when elected officials campaign on social media, local governments should do the reverse and encourage officials to only use personal social media accounts for such activities.
Washington law specifically prohibits local government employees and elected officials from using government “facilities” in a campaign for elected office or in an effort to support or oppose a ballot measure (See RCW 42.17A.555 or our webpage, Use of Public Facilities in Election Campaigns).
RCW 42.17A.555 defines “facilities” broadly to include, among other items, an agency’s machines and equipment. MRSC’s guidance is that an agency’s social media platforms also fall within the definition of a “government facility.” Accordingly, both of these hypothetical scenarios would be considered a violation of RCW 42.17A.555:
An official uses a government computer to access personal social media for campaign-related activities; or
An official uses a personal computer to access and post campaign-related messages to the agency’s social media platforms.
Social Media and the Open Public Meetings Act
The Open Public Meetings Act (OPMA, RCW 42.30) requires meetings of governing bodies (such as city/town councils, county boards of commissioners, and planning commissions) to be open to the public.
When it comes to OPMA issues, the name says it all: the Open Public Meetings Act. In evaluating OPMA compliance, many have the traditional view that “meetings” are physical gatherings of governing body members: Is that right?
Yes and no. While members of the governing body can certainly meet by physically gathering together, they can also meet under the OPMA by actively exchanging official information from separate locations. For example, a significant court decision ruled that a governing body meets when its members exchange e-mails regarding official agency business. In reaching this conclusion, the court noted that “elected officials no longer conduct the public’s business solely at in-person meetings.” See Wood v. Battle Ground School District or our blog, What Constitutes a Serial Meeting under the OPMA?
Under this rationale, governing body members “meet” when they communicate about official business on social media (even from separate locations). In fact, social media communications can become OPMA meetings as simply as one member of the governing body “liking” a fellow member’s social media post. These types of social media exchanges violate the OPMA because they occur without complying with proper notice, public attendance, public comment, or other OPMA requirements.
Local government social media use policies should take OPMA responsibilities into account by restricting OPMA-regulated officials from using social media to actively discuss or vote on official agency business.
Social Media Usage: Reducing Legal Challenges Through Proper Regulation
While clearly an effective and efficient communication tool, social media also presents an array of potential legal challenges for local governments, their employees, and elected officials. The development and consistent enforcement of clear policies related to social media use can greatly assist local governments in taking advantage of social media’s benefits while reducing its corresponding legal hazards.
