One of the most useful features of social media is the ability for interaction between the public and
the government. However, this interactive aspect can quickly become a potential minefield of legal
issues for governments, particularly where comments and speech are involved. As this area of law
is yet undeveloped, the public sector should proceed with caution so as to avoid running afoul of the
First Amendment.

Whether a social media site is considered a “public forum” is an open question, raising concerns as
to whether a government can remove allegedly objectionable Facebook comments without
implicating First Amendment protections. The classic forum analysis will provide different
protections to speech and other First Amendment rights depending on the forum in which such
speech or rights arise.

A traditional public forum includes places that are traditionally used for assembly, debate, and other
“expressive activities,” including streets, sidewalks, and parks. Traditional public forums are places
that have “the physical characteristics of a public thoroughfare, . . . the objective use and purpose of
open public access or some other objective use and purpose inherently compatible with expressive
conduct, [and] historical[ly] and traditional[ly] ha[ve] been used for expressive conduct.” A
government creates a public forum “only by intentionally opening a non-traditional forum for public
discourse” and “does not create a public forum by inaction or by permitting limited discourse.” If a
government tries to place restrictions on the content of speech in a traditional public forum, these
restrictions must be necessary to serve a compelling government interest.

A designated public forum is a nonpublic forum that is not historically open to speech and
assembly-related activities but that the government agency has purposefully opened up for public
dialogue on a limited or permanent basis. Examples of a designated public forum include university
meeting facilities, municipal theaters, and school board meetings. Although the government is not
required to maintain designated public forums on a permanent basis, the government is bound by
the same standards of traditional public forums as long as it does keep them open. Government may
restrict content-neutral speech as long as it is a narrowly tailored restriction that leaves open
alternative channels of communication, and any content-based speech restrictions must withstand a
strict scrutiny analysis, i.e., the restrictions are necessary to achieve a compelling government
interest. Analogizing this to social media sites, some argue that a government Facebook site is a
designated public forum once the government has opened up its site to public comments.
There is a subset of designated public forums known as “limited public forums.” A limited public
forum generally includes the same setting as designated public forums, but the government limits
and restricts the discourse to certain speakers and certain subjects. The main difference between
these two standards is the protection afforded to the speech—in limited public forums, speech
restrictions need only be reasonable and viewpoint neutral. In a limited public forum, a government
agency can freely restrict and reserve access to the forum to certain topics and certain groups as
long as the restriction is not because of the opinion or ideology of the speaker or group. A
government must be careful to monitor and enforce the restrictions and limits on the topics and
groups as designated or run the risk of having the forum deemed a designated public forum subject
to the stricter test. Courts have found city council meetings to be limited public forums.

Government has the power to remove people from meetings as long as they are actually disruptive.
For example, a public agency was found to have acted properly to eject a member of the public
when he continued to actively disrupt the meeting by yelling, interrupting, and trying to speak over
the members of the board when it was not time for public comments. On the other hand, a
government erroneously ejected a man from a city council meeting when he disagreed with the
council members by silently giving them the **** salute.

At the other end of the spectrum lies the government speech doctrine, which protects the
government against First Amendment claims in situations where the government has complete
control over the message that it disseminates and retains the right and ability to exclude others. This
doctrine was applied by the Fourth Circuit Court of Appeals to a school district website. In Page v.
Lexington County School District One, 531 F.3d 275 (4th Cir. 2008), a county resident brought an
action against a school district seeking access to, among other things, the school’s website to
disseminate information that supported upcoming state legislation. The citizen took issue with the
school district’s use of its own website to advocate against upcoming legislation—often through
linkage to third-party publications. The resident claimed that by including links to other websites,
which could be updated without the school district’s consent or approval, the district had
incidentally created a “limited public forum.” The court rejected the challenger’s argument, finding
that because the school “wholly controlled its own website, retaining the right and ability to exclude
any link at any time” as well as including a disclaimer on the website addressing this exact
situation, there was no limited public forum created; and further, the school was protected for its
views under the government speech doctrine.

Some commentators suggest that government social media sites should be treated the same as
websites. The U.S. Court of Appeals for the Fourth Circuit appears to anticipate that issue in the
Page decision, as follows:

Had a linked website somehow transformed the School District’s website into a
type of “chat room” or “bulletin board” in which private viewers could express
opinions or post information, the issue would, of course, be different. But nothing
on the School District’s website as it existed invited or allowed private persons to
public information or their positions there so as to create a limited public forum.
The Page decision should give pause to governmental agencies as it suggests just how easily a
nonpublic forum can be transformed into a limited public forum—merely by providing a link to
some page that allows private users to express opinions or post information.

A recent case may eventually shed some light on this open issue of whether social media is a public
forum (traditional, designated, or limited) or is government speech. In Hawaii Defense Foundation
v. City of Honolulu, et al, a legal defense group sued the City claiming it violated its First
Amendment rights by removing comments posted on the city police department’s (HPD) official
Facebook page and banning those individuals from the site. The lawsuit claims that the HPD’s
Facebook page was a traditional public forum, like a public park. At the very least, according to the
plaintiffs, the City had created a designated public forum when it set up its Facebook page and
allowed comments to be posted. According to the complaint, the HPD had removed comments that
were critical of the police department solely based on the content or viewpoint of the speech rather
than for violation of the HPD’s Facebook use policy. That policy prohibits comments that are
obscene, sexually explicit, racially derogatory, or defamatory, solicit or constitute an advertisement,
or suggest or encourage illegal activities. The plaintiffs seek a declaratory judgment that the City’s
administration of its Facebook page, specifically its removal of plaintiffs’ comments, violated the
First Amendment. The lawsuit also claims that the City’s ban of certain plaintiffs from posting
comments violated their due process rights under the Fourteenth Amendment.

While we do not yet know what the City’s defense will be (and may not know if the case ultimately
settles), it is likely that the City will argue that its Facebook page involves government speech and
should not be subject to a forum analysis. This case certainly bears watching to see what analysis
the court will use and, whether the court will find that the City’s Facebook page is a public forum or
government speech.

Once a public entity determines that its social media activities fall under OPRA, record retention is another challenge. If social media content is considered a government record, public entities are obligated to follow the applicable public records retention schedule. Unfortunately, retaining electronic documents hosted by a third-party can be difficult. For instance, if a municipality removes a comment for violating its posting policy, it must still retain a copy. In addition, if public employees post comments on social media sites as part of their job, they should keep a local copy of anything that requires retention. While there are companies that offer record retention services, the costs may be prohibitive for some municipalities. At the same time, regularly taking a “screen shot” or picture of the Facebook page or Twitter feed can also be time-consuming.

Compliance in Uncharted Territory

OPRA does not specifically address social media, and the Government Records Council has not issued guidance. There are not even any decisions yet regarding government use of social media and the obligation to retain records. As a result, many municipalities are playing it safe. That means not allowing anyone to post comments and avoiding posts that contain original material, i.e. posting links to existing content, in order to avoid record retention obligations.

For public entities that want to fully take advantage of social media, it is essential to create a written policy. At minimum, it should address the following: what social media content constitutes a public record; what methods the municipality will use to capture and store the records; how long the records must be archived, including those retained by third-party service providers; and how to archive comments and other material on other social media sites by municipal employees.

We just got word that a fan Milo Yiannopoulos is suing uc Berkeley for $23 million, and she is claiming it is due to routine abuse against conservative students on the university campus. She is claiming that her First Amendment rights were infringed when she was forced to evacuate due to Milo’s speech no-campus. She had to evacuate because of a left-wing protest that turned a bloody violent.

“The suit, filed in federal court in California on Monday alleges that the defendants ‘have subjected UC Berkeley students and invitees who do not subscribe to the radical, left wing philosophies sanctioned by Defendants to severe violence and bodily harm for merely expressing a differing viewpoint, in clear contravention of their rights under the First Amendment to the U.S. Constitution,’” reported SF Gate on Tuesday. “In addition to the UC Berkeley Regents, the suit’s many defendants include UC president Janet Napolitano, the UC Berkeley police department, the Berkeley police department, frequent conservative target George Soros and California representative Nancy Pelosi.”

This lawsuit, is claiming that the “University of California Berkeley has acted to unconstitutionally curtail the First Amendment rights of its students and invitees thereof.”

“Several people, including Plaintiff Robles, were intentionally and violently attacked by both masked and unmasked assailants and the UC Berkeley campus incurred over $100,000 worth of damage,” the suit continues. “Plaintiff Robles was attacked with extremely painful pepper spray and bear mace by masked assailants amongst the ‘protestors’ because she chose to exercise her right to freedom of speech and show support for the planned speaker, Milo Yiannopoulos.”

This lawsuit also claims that no campus police were there to defend the targeted students, attendees, and the speaker from the violence that came after them when protesters erupted with hate and violent attacks.

The U.S. Court of Appeals for the 9th Circuit ruled Monday afternoon not to reinstate the president's travel ban for people from six majority-Muslim countries. A lower court paused the ban shortly after the Trump administration issued a second version. (The first met its death by the 9th Circuit, too, though this version is expected to go to the Supreme Court.)

The crux of three-judge panel's argument was this: The administration failed to prove the travel ban is so necessary for public safety that it can temporarily curtail people's liberties. And on this key part, it cited one of the president's tweets

Rep. Steve Scalise was shot Wednesday morning in Alexandria, Virginia, a House colleague told CNN, in what sources are calling an apparent "deliberate attack."

... shooter asked "Are those Republicans or Democrats out there practicing?"

One of his most recent posts says, "Trump is a Traitor. Trump Has Destroyed Our Democracy. It's Time to Destroy Trump & Co." [sic]

"I want Bernie to Win the White House." he wrote Aug. 12th, 2016. "Bernie is a Progressive, while Hillary is Republican Lite. ... Bernie is the Only Candidate in Decades that Really Cares about the Working Class." [sic]