Facebook and the First Amendment for Libraries

Lisa M. LeeRansmeier & Spellman, P.C.www.ranspell.com

What is “social media”?

The integration of technology, social

interaction, and content creation

800 million active users 400 million on a daily basis

41% of the US Population uses Facebook

350 million users on mobile devices Average user has 130 friends

100 million active users

100 million more “lurkers”

238 million tweets per day

Other Social Media Platforms

Welcome to the Social Media Revolution

http://www.youtube.com/watch?v=3SuNx0UrnEo

This is all very

Overwhelming UnfamiliarExciting

Fraught with Peril???????

The Wisdom of Dr. Seuss

“I have heard there are troubles of

more than one kind. Some come from

ahead and some come from behind.

But I've bought a big bat. I'm all ready

you see. Now my troubles are going to

have troubles with me!”

“Troubles”

Social Media

First Amendment/42 USC Section 1983

RSA chapter 91-A: The Right to Know Law

RSA chapter 98-E

Our Bats

1. Familiarity with the Law

2. Familiarity with Social Media

Platforms

3. A Social Media Strategy

4. A Tailored Social Media Policy

The Law

The First Amendment

“Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech, or of the press; or the right of the

people peaceably to assemble, and to petition

the Government for a redress of grievances.”

Problems with the law….

It cannot keep up with technology.

There are no legal precedents at this time in the First Circuit that deal with social media.

What does the 1st Amendment Prohibit????

Generally speaking, government cannot regulate private speech.

There are, of course, exceptions.

What are the potential problems

with the First Amendment?

The What ifs?

People start posting advertisements? People post things that are off topic? People post hostile messages? People use obscenity? People post things that are

threatening or defamatory? People post things that violate legal

ownership of another?

The Government Speech Doctrine

A government entity has the right to speak for itself. This includes website content and probably links. See Sutliffe v. Epping School District, 584 F.3d 314

(1st Cir. 2009).

This probably won’t extend to deleting comments or viewpoints expressed on Facebook once and invite to interactivity is extended.

Facebook as a Public Forum

Facebook that is interactive is likely to be treated as a limited public form because it is the intentional opening of a nontraditional forum for public discourse.

What is a limited public forum?

A government entity, in regulating property in its

charge, may impose restrictions on speech that

are:1. reasonable in light of the purposes of the forum; and2. viewpoint neutral.

What are the permissible “limits”? Who gets to speak?

The time, “place” and manner of the speech

The content (to some extent)

Who gets to speak?

This is dangerous territory.

What do they get to say?

This is a better place to seek safe harbor.

Content

Subject matter restrictions are upheld as long as they

are reasonable in light of the purpose served by the forum

and viewpoint neutral.

Land Mines—Content Restriction

Religion Politics Decency “no public controversy” policies

These topics blur the line between content

and viewpoint discrimination.

Purpose

A clear purpose of the social media platform needs to be established NOW so that restrictions can be imposed LATER.

How are libraries using social media?Education Reach a different audience (younger?)Interaction Provide reference servicesTo remain relevant

Explicitly Define the Purpose of the Forum.

(I will show you where to put it in a little while.)

Purpose

The more well-defined your purposes, the easier it will be to determine what posts match it. Avoid broad terms like “bullying”.Use specifics.

If you don’t define them, you might get stuck with everything.

Use it or lose it.

If you have a clear purpose but do not enforce it, you are compounding your problems.

When you DO try to enforce it, people may cry foul.

How to set up a Facebook Page…

In five minutes or less

Have a moderator.

Please.

An Example of a Purpose

The purpose of this Facebook page is to allow and encourage the library to communicate with the public and with other libraries about topics of interest to the library including its services, events, and other library news. The topics of discussion will be set by the moderator, and it is expected that comments made will be on topic. Comments that are off-topic, contain sexually explicit or obscene material, contain solicitations, are defamatory or threatening will be removed.

Find the Basic Information Tab

Put your purpose there.

Give serious thought to your purposes.Then put pen to paper.

How does Facebook help me?

“Profanity Filters” Age restrictions

How people that Like your page can post on it

What shows up first… “your purpose”?

This is all under the Manage Permissions Tab.

Back to the What Ifs?

What you can do depends on your purposes…

Restrictions must be reasonable in light of the purpose of the forum and viewpoint neutral.

Someone posts something critical about the library…

A. Delete itB. Ignore itC. Respond constructivelyD. Respond constructively then

introduce a new topic.

Advertisements start appearing…A. DeleteB. IgnoreC. Delete and take the opportunity to

remind people about the purpose of the forum.

Someone posts incorrect information… Politely correct it. Move on.

Someone posts something harsh about a library employee… If one of your purposes relates to

customer service, you may be stuck with this.

If the comment relates to the individual’s job performance, err on the side of leaving it up.

If it is something unrelated, you are on better ground.

Remember that you must be viewpoint neutral in what you delete.You can’t let some speakers get away with breaking your policy and then enforce it with others.

When in doubt about deleting…

Leave it up.

If you delete something, document.

Take a screen shot of the post.1. Hit “ALT and PRINT SCREEN”2. Then paste it into a document.

Refer to the party of your purposes that prohibits that comment.

Make a note to yourself. Possibly send a message to the poster.

Do I need a social media policy?

Yes. You need at least two.

Good news…

We have already discussed the first one…your purposes for your Facebook page.

You need one for your employees.

That is the second one.

The policy for your employees is more complex. Particulars of Their Use of Social

Media on Library Time Privacy Issues Employment Issues Labor Issues More

My contact information:

Lisa M. LeeRansmeier & Spellman, P.C.One Capitol StreetConcord, NH 03301(603)228-0477

llee@ranspell.comwww.ranspell.com Like us on FacebookFollow us on Twitter: @RansmeierSpellm