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City Attorney’s Office

Potential Legal Issues When

Government Uses Social Media

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Overview

• First Amendment• Public Records• Open Meetings• Guidance for Elected Officials• Litigation – administrative record

• The sum of all of this = “A Policy”?

• A separate matter:> Regulating employee use of social media

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First Amendment• “It is speech on matters of public

concern that is at the heart of the First Amendment's protection. The special concern [for speech on public issues] is no mystery: The First Amendment was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. Speech concerning public affairs is more than self-expression; it is the essence of self-government.”

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• How does a public entity manage speech within protections granted by First Amendment?

• Public Forum> Streets, parks, town squares, etc.

• Non-Public Forum> Jails, military bases

• •Limited (Designated) Public Forum> State's right “to preserve the property under its

control for the use to which it is lawfully dedicated”

> Non-public forum specifically designated by government as open to specific topics

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• Is a social media site a limited public forum?> City website – most likely yes> Private provider site – probably, but yet to

be decided by a court

• Cannot restrict content in limited public forum unless restriction is:> Viewpoint neutral, and> Reasonable in light of forum’s purpose

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What should go in your policy?

• TALK TO YOUR AGENCY LAWYER

• Articulate a clear government “business” purpose for social media use> Permit all comments; a moderator may post

corrections or point out inaccuracies Don’t edit comments Don’t prohibit criticism

> Prohibit specific content that is discriminatory, illegal, commercial, campaign-related

It could be a problem to prohibit content that is simply disruptive

May be ok to prohibit content unrelated to topic of discussion?

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Compare general policies:

•Seattle•Reserve right to restrict/remove:

> Not topically related to posting being commented on; or

> Promotes discrimination or political/campaign candidate; encourages illegal activity; compromises public safety or security; is profane; violates legal ownership interest; or solicits commerce.

•Palo Alto•Shall not be allowed and shall be removed:

> Is profane, discriminatory, sexual material, solicits commerce, encourages illegal activity, compromises security of public/public systems, violates legal ownership interest

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Compare Facebook policies:

• Comments on Facebook wall> Seattle:

Generally, off If on, disclaimers

> Palo Alto Generally on if can be monitored,

and disclaimers

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Public Records• Public Records Acts

> CA Gov’t Code §§ 6251 et seq.; Nevada R.S Chapter 239 et seq.

> “Public records” includes any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.

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• What does government do when it can’t control the records?> Is it still a public record?

Most likely, yes> If it is a public record, does

government have an obligation to preserve? And provide a copy to anyone requesting such? Yes, and definitely yes

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Compare:• Palo Alto and Seattle

> Content related to City business shall be maintained in an accessible format and so that it can be produced in response to a request. Is that practical, or technologically

feasible?> Warnings that content on social media

sites may be subject to public records and disclosure laws, including information made available through a user’s privacy settings on their own pages.

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Open Meetings• Ralph M. Brown Act (Cal. Gov’t

Code §§ 54950 et seq.)• Nevada R.S. Chapter 241 et seq.

• “All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency . . . . “

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• Who does it apply to?> Legislative bodies

• When does it apply?> When there is a “meeting”> Elements of a meeting:

congregation of a majority of the members of the legislative body

same time and place to hear, discuss or deliberate any item within the subject matter jurisdiction of

the legislative body

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• Serial meetings are illegal> Hub-and-spoke> Daisy chain

> Postings on a social media site can quickly become either of these

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• Neither Seattle or Palo Alto address open meetings within their policies

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Guidance for Elected Officials

• Talk to your agency attorney and/or personal lawyer!

• Do not use public agency resources for campaign or personal purposes> Gov’t Code Section 8314

• Avoid Brown Act problems> Discourage officials from

“friending” each other

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• Avoid an appearance of bias> Public officials should refrain from

discussing matters on social media sites that are or could come before them or bodies on which they sit for quasi-judicial action

• Add a “prohibited postings by public officials” to your policy, and add this issue to your AB 1234 ethics training

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Litigation – administrative records

• “We therefore resolve the substantive CEQA issues on which we granted review by independently determining whether the administrative record demonstrates any legal error by the County and whether it contains substantial evidence to support the County's factual determinations.”

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• What constitutes the administrative record?> All written evidence submitted to

agency• How do we wrap our arms

around a record that may be contained on multiple websites?> Should we restrict “official

comments” to only those posted on agency-controlled website?

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• City of Bothell, WA> “Communications made through City of

Bothell Social Media sites in no way constitute a legal or official notice or comment to the City of Bothell. (For example, a post or comment that asks for public records will not be considered a public records request under RCW 42.56.) To comment about a specific city project or program, please contact the appropriate department.”

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Redondo Beach Quits Facebook

• “Until local leaders are satisfied that the use of the popular social networking website won't leave the city open to legal challenges or violations of open meetings and public records laws, they've ended a pilot project that put Redondo Beach on Facebook about a year ago.”

> August, 2010, www.dailybreeze.com

• "Social media is inevitable, but we just think from a legal point of view Facebook has too many complications," said (City Attorney) Webb, who told the council he believes these and other questions will eventually be answered in court decisions.

>"I would just prefer that the case law not have City of Redondo Beach in the title."

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But even lawyers disagree

• “While acknowledging Redondo's concerns, (attorney) Overing said policies could be put into place to address them. For example, cities daily can print comments posted on Facebook so a record is established, he said, and ask elected officials to not respond to comments so as to avoid possible open meetings law violations.”

• Is this realistic?

• Does this serve the purpose of putting yourself out there on electronic media?

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Links• Institute for Local Government paper

> http://www.ca-ilg.org/socialmedialegalissues• Examples (including Palo Alto) at California Institute

for Local Government> www.ca-ilg.org/socialmediapolicies

• League of California Cities’ policy> http://www.cacities.org/index.jsp?

zone=locc&previewStory=28231• Seattle

> www.seattle.gov/pan/SocialMedia_CityLink.htm• Bothell, WA

> http://www.ci.bothell.wa.us/CityServices/Administration/CityManagersOffice/CityNews/socialmediapolicy.ashx?p=1619