Prof. Lyrissa Lidsky, Prof. Jon Mills and Prof. Sandra Chance discuss the tricky relationship between social media and government. (Photo by Andres Farfan)

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.

More than 110 guests attended the seminar on Jan. 22 in the Chesterfield Smith Ceremonial classroom at the UF College of Law, and hundreds more watched the online broadcast. It featured a panel of legal and other professionals and experts, including Jon L. Mills, founding and current director of the Center for Governmental Responsibility, professor of law and dean emeritus of UF Law; Lyrissa Lidsky, UF Stephen C. O’Connell chair and professor of law; Susan Blair, UF chief privacy officer; Barbara Wingo, UF associate vice president and first deputy general counsel; Paula Fussell, UF vice president of human resource services; and Jane Adams, UF vice president for university relations.

“We are indeed lucky to have panel with this breadth of experience and expertise,” Mills said.

A common theme was though social media provides many benefits, it also has repercussions that may be costly to a person’s privacy, safety and employment opportunities.

Mills began the seminar with discussion of four specific aspects at the crux of the social media debate — the concept of gossip, wide dissemination of information due to the technology, the issue of public records, and personal carelessness. He focused on importance of understanding the technology that gives social media its power.

“The future is difficult because the law and policy have not caught up, even remotely, with technology. And the prospects of it catching up are not good,” Mills said. “We just have to understand the reality of what we are doing — that even if you think the law protects you, it may not, and that abuses and negligence are the things that are beyond technology, the law and policy.”

As an admitted avid user of social media, Lidsky noted the ability of the social media to sponsor a vested community.

“One of the beauties of Facebook is the sense of responsiveness it engenders,” Lidsky said. “You are serving your constituents when you are available to them on Facebook, perhaps to answer questions, or to deal with common policy issues that arise. And one of the best things about Facebook is the immense interactivity, which fosters a sense of community.”

She also described the specific rights that Web site or page administrators have to edit or remove material and communications posted on the site based on the type of fora — whether public forum, non-public or outlet for government speech — that has been created. In a public university setting, the Facebook page should be set up as a non-public forum to allow for some control of postings while facilitating the largely free exchange of ideas.

As UF’s chief privacy officer, Blair provided helpful tips on how to avoid making specific privacy violations that could occur under such laws as the Health Insurance Portability and Accountability Act (HIPAA) or the Family Educational Rights and Privacy Act (FERPA), citing awareness of the requirements of these laws as key to preventing privacy violations.

With the broad array of legal topics on which she is versed, Wingo’s presentation touched on several aspects of using social media and networking Web sites, from copyright and trademark law to open meetings laws, and when posting to social media must be considered of public record. She noted the marked lack of policies prepared by universities on the appropriate and effective use of social media — the lack of which was one reason behind UF’s decision to host the seminar.

“It is actually very surprising how few universities have formulated policies on these social media. And the few that are out there, that are public, are probably as confused as we are as to where we should go with this whole issue,” Wingo said. “We are actually formulating a disclaimer, something that you can post on your Facebook pages, that we think will take a middle ground,” she said.

At the heart of Fussell’s presentation were the long-term implications that the sharing of inappropriate and non-professional photos and postings can have on current and potential employment opportunities.

There is something about social media that enables us to post things online we would not publish in a newspaper or say out loud to someone’s face, Fussell said.

In wrapping up the presentation, Adams discussed the power and potential of social media to connect individuals and allow for increased engagement on topics of specific interest to viewers and users. She noted that UF was a leader in the use of social media for business purposes, and reviewed a number of UF sites.

In all, the panel seemed united on the idea that stopping and thinking a little more before sharing those comments and photos could save us from many of the costly retributions, and instead, allow us to enjoy the promises of social media rather than its pitfalls.

“We all understand the complexity and the contradictory nature of social networks,” said Mills. “It’s a great opportunity to be able to share ourselves and to share information with others. We just have to understand the reality of what we are doing.”

The seminar grew out of the work of the University of Florida Strategic Communications Planning Committee, chaired by UF Law Communications Director Debra Amirin. For more information or to view the archived video, visit http://strategiccommunications.law.ufl.edu

Sarah Perez’s five easy steps to stay safe (and private!) on Facebook

Jon Mills’ tips for using social media:

• Define your goals and the audience with which you want to network
• Understand the law as it relates to your goals and audiences
• Understand how technology and reality impact implementation of your goals

Susan Blair’s privacy considerations for faculty members:

• Model appropriate behavior
• Do not share confidential or restricted information online
• Avoid unprofessional behavior violates university policy
• Do not post risky pictures
• Beware of “meat puppets” – individuals posting to your page with ulterior motives
• Consider and implement all privacy protections available to you
• Understand the terms and conditions of Facebook

For more information on the university’s privacy policies and procedures, visit the UF Privacy Office Web site at http://privacy.ufl.edu/pandp.html.

Barbara Wingo’s Tips

• Assume that nothing is private, everything is public
• Assume that existing laws apply to social media

For more information about the university’s regulations and policies regarding acceptable use and intellectual property policies, visit the UF Office of the Vice President and General Counsel’s Web site at www.generalcounsel.ufl.edu/regulations/.

The event will also be Webcast live via a link on the UF Law home page, and an archived version will be available later along with comprehensive information on social media on the Seminar Series section of the UF Strategic Communications Web site. RSVP by Jan. 21 to UF Strategic Communications Planning Committee Chair Debra Amirin at amirin@law.ufl.edu, if you plan to attend.

The event features a distinguished panel of UF experts:

• Moderator, Center for Governmental Responsibility Founding and Current Director Jon L. Mills, Professor of Law, UF Law Dean Emeritus, author of Privacy: The Lost Right, Oxford Univ. Press, 2008: Overview of social media; the inherent conflict between social media and information disclosure in public institutions
• Stephen C. O’Connell Chair and Professor of Law Lyrissa Lidsky: Laws and topics related to the Internet and social media, touching on libel, public forums, free speech and academic freedom
• Chief Privacy Officer Susan Blair: Privacy regulations and UF information privacy policy, case studies, recent developments, resources
• Associate Vice President and First Deputy General Counsel Barbara Wingo: Social media legal and policy considerations specific to UF, including public records, Sunshine Law, Acceptable Use Policy, and student disciplinary issues
• Human Resource Services Vice President Paula Fussell: Review of employment-related issues
• University Relations Vice President Jane Adams: Power and potential of social media