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In the March-April 2020 issue, we began a series of articles that explore the emerging legal and policy issues surrounding the use of social media applications by municipalities, their officials, and their employees.

This second article explains how municipalities can manage public content on their social media while also respecting the First Amendment rights of public users. In other words, if a municipality allows public users to communicate on its social media platforms, what content can be censored without violating the users’ right to free speech? Municipalities don’t have to allow every kind of speech on their social media. They can have reasonable rules so long as they don’t discriminate based on the speaker’s viewpoint.

Social Media as a Public Forum: Government Speech or Limited Public Forum?

Before your municipality jumps into using social media, you should decide whether you will allow users to communicate and interact with the municipality’s posts and content on the social media platform. 

A municipality can designate and operate social media as a government speech forum, which deliberately precludes public users from participating through comment or posting content. This type of forum is reserved for the municipal government to engage in its own expressive conduct – for example, to promote its own message and distribute information. 

The other option is a limited public forum, which permits user communication and interaction with the municipality’s social media. Still, the municipality need not allow all speech in a limited public forum. Municipalities can impose reasonable viewpoint-neutral rules that may, for example, prohibit obscene or threatening comments, ban advertising, restrict user participation to those topics raised by the municipality, or place a reasonable limit on how many times a user can post within a certain timeframe. (If these seem similar to the rules your selectboard or planning commission has at its physical meetings, it’s not a coincidence. The same First Amendment principle applies.) With viewpoint-neutral reasonable rules, a limited public forum allows only discussion related to topics raised by the municipality in its initial post. Everything else is subject to removal. 

Section 5 of VLCT’s model social media policy shows you how to designate social media as either a government speech forum or limited public forum. VLCT’s Municipal Assistance Center suggests that municipalities designate their websites and social media as platforms for government speech only, unless the municipality has sufficient resources (e.g., staffing and time) to moderate and maintain a limited public forum.

Avoiding Improper Censorship. Even if your municipality has designated social media as a limited public forum and has posted clear rules for permitted speech, your municipal moderator (or whoever moderates content) must be consistent, objective, and predictable in their censorship of speech (i.e., editing or removing user comments or interactions). One of the most egregious forms of violating free speech is censorship based on the speaker’s viewpoint. Therefore, while a municipality can restrict certain content that, for example, is not relevant or violates a specified rule (e.g., it is obscene), it cannot edit, hide, or delete content merely because the municipality disagrees with it or the content is critical of the municipality or a municipal official.

American jurisprudence on how governments may regulate users’ speech on social media is rapidly evolving. Although federal courts haven’t yet given us a uniform precedent, they have ruled that free speech is violated on social media when a government completely blocks users from communicating or interacting based on a disfavored viewpoint. Federal courts have also found free speech abuses when a government deletes user comments or interactions without any justifiable viewpoint-neutral basis or without considering whether there are less restrictive options, such as giving the user a warning.

The upshot of these cases is that governments should almost never censor a user based on their viewpoint alone. When a moderator targets particular views taken by speakers on a subject and not the subject matter, the municipality could be sued and be liable for attorney fees and other legal costs.

Note that if a municipality has designated a social media platform as a limited public forum but fails to consistently moderate user content, the platform may become a de facto unrestricted public forum (such as parks, sidewalks, and other public areas traditionally open to public speech), further restricting the municipality’s ability to limit or remove content.

Moderating Content and Due Process. If your municipality sets up a social media platform as a limited public forum, it needs to establish social media rules and appoint a moderator to apply the rules evenhandedly and consistently. In addition to being clearly posted for users to see. your social media rules should detail the criteria and process for removing content, including:

  • notifying users when they have violated the municipality’s social media policy;
  • identifying the specific rule violated and, if it’s not obvious, explaining why it constitutes a violation;
  • whether the moderator has edited, removed, or blocked the user; and
  • how users can appeal the moderator’s decision.

The July-August issue of VLCT News will continue our social media series. In the meantime, you can refer to VLCT’s Model Social Media Policy for help in creating and managing your municipality’s social media platforms.

Carl Andeer, Staff Attorney II
VLCT Municipal Assistance Center