Public Officials Should Use Caution on Social Media
According to a recent Pew Research Center survey, 72 percent of all Americans use some type of social media regularly. Government-backed social media accounts have served as a valuable method to communicate with the public, especially during the pandemic when many people have increased their use of the internet.
Along with the steady growth in social media use comes the increased likelihood that someone may use Facebook, YouTube, Twitter, or another platform to express their discontent with a public official on an official government-backed account.
How should a public official or the administrator of an official government-sponsored account respond to criticism, negativity, or other content that he or she may find undesirable?
First Amendment and social media
In a 2022 opinion, a federal court ruled in favor of a county commissioner who blocked a user from his page. Couy Griffin, an Otero County (New Mexico) commissioner, maintained a Facebook page for which he posted personal content and content related to his work. In 2019, he blocked constituent Jeff Swanson from his profile after Swanson posted critical comments about Griffin’s work as a public servant.
Swanson filed a lawsuit in federal court, alleging that Griffin’s Facebook page was a public forum and that Griffin violated the First Amendment by blocking Swanson.
Griffin raised a qualified immunity defense, adding that the allegations did not support the decision that Griffin’s Facebook page is a public forum and that there could be no violation of the First Amendment. The federal court agreed that qualified immunity protected Griffin from Swanson’s claims, because the applicability of the First Amendment to a government official’s personal social media account was not “clearly established” at the time Griffin blocked Swanson.
In 2019, the U.S. Court of Appeals for the Second Circuit ruled that former President Donald Trump (Knight v. Trump) violated the First Amendment’s prohibition on viewpoint discrimination when he blocked Twitter users for the speech he disliked.
The court reasoned that Trump’s private account became an official government account on Inauguration Day because from that day forward he used it as, “a channel for communicating and interacting with the public about his administration.”
The First Amendment does not allow a public figure who uses social media for official purposes to exclude followers from an otherwise open online dialogue because they expressed views with which the official disagrees.
Also, the court noted that similar cases involving free speech and government social media accounts will require a fact-specific inquiry informed by:
- How the official describes and uses the account;
- To whom features of the account are made available; and
- How others, including government officials and agencies, regard and treat the account.
Social media-using government officials should take note of the cases listed above and others and avoid blocking a user or deleting his or her comments on Facebook, Youtube, Twitter, Instagram, and other accounts.
Guidance on personal accounts
Government officials are permitted to use personal social media accounts, although they must do so carefully. Social media often blurs the lines between professional and personal lives, and posts or comments intended as personal opinions should not be mistaken for an official stance.
Generally, public servants with personal social media accounts should take care to ensure that:
- Their personal account is not mistaken for an official account by using a government title or position that would create an appearance that the government sanctions or endorses an individual’s activities;
- Government resources, such as staff and equipment, for example, are not used in connection with the personal account (officials should avoid using personal social media when they are conducting government business as well), and;
- The account is not used to communicate information about government duties or to solicit information from constituents.
Public servants should maintain a clear separation of their two accounts on every platform they seek to utilize.
Help is available
The attorneys at O’Reilly Rancilio are available to answer your questions regarding social media and the law. For more information, please visit our website or call 586-726-1000.