Legal scholars discuss relationship between government, social media as complicated
During his campaign for the presidency, President Barack Obama captured the attention of Americans through his savvy use of social media in a way no presidential candidate had done before. As a result, many government agencies have jumped on the social media bandwagon, and are using Facebook and other social media websites to communicate with their constituents. Yet, they may be unaware that exercising editorial control over the content on their websites could open them up to potential liability for lawsuits or other legal actions.
Can a government actor, such as a law school administrator, remove or edit “undesirable” comments on a website without becoming the subject of litigation charging a First Amendment violation? According to Stephen C. O’Connell Chair and University of Florida Professor of Law Lyrissa Lidsky, it depends on whether a court labels it government speech or a public forum.
In her presentation entitled “All the President’s Tweets: The First Amendment and the Online Public Forum,” given as part of the UF 2010 Constitution Day program on September 17, Lidsky examined the complex relationship between social media and the government. She suggested that the law governing public forums should be adapted to foster government use of interactive media. Specifically, she suggested that public forum doctrine must grant government actors greater leeway in eliminating abusive speech so to allow them to fulfill their role in configuring communication spaces and maximize public discourse.
The presentation—hosted by the Levin College of Law in the Chesterfield Ceremonial Classroom—included commentary by UF Law Dean Emeritus and Director for the Center for Governmental Responsibility Jon Mills; and Executive Director for the Brechner Center for Freedom of Information and McClatchy Professor in Freedom of Information Sandra Chance. The panel discussion was moderated by UF Law Dean Robert Jerry.
Government actors and citizens have myriad incentives for participating in social media, but the state of the law is very muddled in this area and has not fostered optimal social media policy by the government, Lidsky said.
One such area that poses significant challenges for government agencies involves their obligation to comply with open records laws.
Chance, who researches issues on access to government meetings and records to media organizations, said government agencies are required to maintain records of their use of social media. This requires the organization to print and maintain for public record a daily copy of social media sites, which could be difficult for retention purposes.
“It’s important to remember that the technology can overtake the principles very quickly,” she said.
Mills, expert and author of a book on privacy, “Privacy: The Lost Right,” said that online speech enables individuals to make abusive or threatening comments that they might not have made if they occur in a public place.
“There are things we do in public that are very different when transformed to electronic spaces,” Mills said. “I’m not sure that even the greatest free speech advocate would want this to be a complete public forum.”
As a result, some actors might refrain from taking part in public discourse altogether, which is a detriment to its citizens, Lidsky said.
“The point of social media is interactivity,” she said. “As citizens, we want interactive social media where we can express our views, and we can have an open discourse and open debate with other citizens and with government actors whose actions affect our lives.”
Although the government speech doctrine would most likely protect “all the President’s Tweets,” it is most likely that this type of speech would fall into a gray category, such as the limited public forum category, Lidsky said.
Under a limited public forum, a moderator could presumably limit the speech to certain categories of speakers, such as law students, or to certain categories of topics.
So, what steps can a government actor take to moderate citizen commentary?
A moderator may be able to remove comments that are unrelated to the topic of the forum if she has posted a content filtering policy, Lidsky said. The law also provides that some content, such as profanity, can be removed if it is viewpoint neutral. But that may still be up to the court to decide.
“Government use of social media is something that we ought to pursue and look at, but we ought to look at it carefully,” Mills said.
Constitution Day commemorates the signing of the U.S. Constitution in 1787. Each year, the University of Florida – along with other public funded universities – celebrate the day with special programs and activities.
Click on the link to watch the archived webcast.