For all its benefits in communicating with residents, there are also legal implications for a municipality’s activity on social media.
“The First Amendment is in play here and every government entity needs to think through carefully what it seeks to do, and do that in consultation with the borough solicitor,” said Tom Place, a professor at Penn State Dickinson School of Law.
Those issues have come into focus as President Donald Trump’s use of Twitter has mixed official statements with policy initiatives and attacks on those who oppose him.
Last year, the Knight First Amendment Institute at Columbia University, a nonpartisan, not-for-profit organization that defends freedom of speech and press in the digital age, called on the president to unblock Twitter users who they said had been blocked because of their views.
The institute said Trump uses the social media service to share his thoughts and decisions in his role as president, and millions of people respond to those posts, ask questions and sometimes receive a response.
“This Twitter account operates as a ‘designated public forum’ for First Amendment purposes, and accordingly the viewpoint-based blocking of our clients is unconstitutional,” the institute wrote in the letter.
By creating that public forum, the institute said Trump could not “constitutionally exclude individuals on the basis of viewpoint.” The institute maintains that blocking users on Twitter suppresses free speech since the users can no longer follow the president on the platform. It also limits their ability to view Trump’s tweets, search for them or learn what accounts follow him.
The institute also acknowledges that “the government may impose reasonable time, place and manner restrictions in a designated public forum, but it may not exclude people simply because it disagrees with them.”
Carlisle Borough and Lower Allen Township, which both have active Facebook pages, have policies that restrict commenters from making personal attacks and using profanity. Carlisle’s posted policy also bans spam, advocating illegal activity or compromising safety, among other considerations.
Stephanie Taylor, public information coordinator for Carlisle, said she takes screenshots of the comments violating the policy before deleting them. Tom Vernau, township manager in Lower Allen Township, said he warns offenders before deleting comments on additional violations.
Still, those solutions could find the municipalities in legal trouble.
“Anytime a government agency limits the right to speak, it creates constitutional issues, and such limitations face significant scrutiny in the courts,” said Melissa Melewsky, media law counsel, Pennsylvania NewsMedia Association.
Because the constitution applies to government regulation of speech online and offline, members of the public have brought lawsuits as a result of government-imposed restrictions, she said.
In 2016, the Indianapolis Star reported that two women sued the City of Beech Grove in Indiana over comments that were deleted from the city police department’s Facebook page, which carried a terms-of-use warning that indicated comments could be deleted if they included personal attacks, profanity or advocating violence.
The women said their comments were critical of the department, but did not violate the posted standards. The city reached a settlement with the women for $7,412.50 to cover costs and attorneys’ fees.
First Amendment issues become more complicated when applied to accounts held by borough officials.
The American Civil Liberties Union said people do not lose their rights by being elected to public office, but they are, at the same time, subject to limits that the First Amendment places on them in their role as a government official.
As they work through cases involving public officials’ use of social media, the courts will have to determine what role a public official takes on a given account. If it’s a private account, the official may act as any other member of the public to limit the audience and delete comments. If, however, the official is using the account as part of their government service, they can’t stop people from joining the conversation or block them from the account based on their viewpoints.
“Blocking residents from a government social media account or personal account used for public business creates First Amendment issues because it amounts to government prohibition of speech,” Melewsky said.
Using social media for official business, whether by an individual or a municipality, subjects the posts to the open records law in Pennsylvania.
As with First Amendment issues, a public official’s social media accounts can be subject to the Right to Know Law if the official is using them for public business because the focus is on the content itself, not where that content was created, Melewsky said.
“The Office of Open Records has ruled that when social media is used for official purposes, the postings and lists of blocked users are subject to public access under the Right to Know Law,” she said.
Last August, the Office of Open Records granted the appeal of a Chambersburg man who had petitioned that borough for Facebook records from Mayor Darren Brown’s public figure Facebook page. Noel Purdy requested copies of all posts and associated comment threads from the page that related to or mentioned in any way a proposed Rail Trail mural. The request included posts and comments deleted from the page as well as emails and messages communicated through Facebook Messenger.
The borough partially denied the request, stating that the Facebook posts were the mayor’s private social media activity and therefore not borough records.
The Office of Open Records found that it was “immaterial whether or not the borough has oversight over the Facebook page or authorized the mayor to maintain such an account.”
It also said the page contained discussions and posts regarding activities in the borough as well as contact information for the borough, and directed the borough to provide the requested information.
To negotiate these legal issues, Leslie Suhr, director of public affairs and new media at the Pennsylvania State Association of Boroughs, said the organization recommends that boroughs have a policy in place not only for the borough itself, but also for its officials regarding the use of social media.
“That’s the first step in connecting all the dots and making sure everything is correct,” Suhr said.
The association also connects its members to training on social media issues as that becomes an increasingly effective way for officials to reach residents, particularly its younger citizens.
“This is where everybody goes to get their news and information, network and exchange ideas so it’s an important avenue,” she said.