Poll Questions Go To Menti com And Use

Poll Questions: Go To Menti. com And Use Code 74 64 62 The Law Offices of Mark A. Cuthbertson 434 New York Avenue Huntington, NY 11743 Tel: (631) 351 -3501 Fax: (631) 427 -9507 www. cuthbertsonlaw. com

Poll Questions: Go To Menti. com And Use Code 74 64 62 Ban At Your Own Risk: How Government Social Media Can Run Afoul Of The First Amendment Association of Towns of the State of New York Annual Meeting

Poll Questions: Go To Menti. com And Use Code 74 64 62 Government Social Media And The First Amendment Introduction

Poll Questions: Go To Menti. com And Use Code 74 64 62 Government Social Media And The First Amendment Marco Rubio v. Alex Jones – 9/5/18

Poll Questions: Go To Menti. com And Use Code 74 64 62 Government Social Media And The First Amendment

Poll Questions: Go To Menti. com And Use Code 74 64 62 Government Social Media And The First Amendment Alex Jones Among Jones’ conspiracy theories was that the Sandy Hook massacre was staged, and the parents of the victims were paid actors. This led to parents of the victims being harassed or threatened by Jones’ followers. On August 6, 2018, Facebook, Apple, You. Tube and Spotify removed all content by Alex Jones and Infowars from their platforms for violating their policies on hate speech, citing his segments on immigrants, Muslims, and transgender people, and for promoting bullying and harassment. On September 6, 2018, Twitter finally banned Jones.

Poll Questions: Go To Menti. com And Use Code 74 64 62 Government Social Media And The First Amendment The Big Picture While banning Alex Jones and Infowars received a lot of attention (and garnered criticism from the far right), social media companies regularly remove offensive or illegal content on their platforms. While each company has its own standards, most platforms generally moderate content following First Amendment principles. The challenge posed by people like Jones has grown more serious with the rise of bots (i. e. automated programs that can run and coordinate thousands of fake accounts) that spread similar content. The challenge for social media companies is to combat such harmful content without harming public debate or free speech.

Poll Questions: Go To Menti. com And Use Code 74 64 62 Government Social Media And The First Amendment The Big Picture Government websites provide the public a wealth of non-interactive information: • Live-streamed hearings • Legislative or regulatory proposals • Access to government services However, official social media accounts for governments or government officials, and how citizens interact with them, can raise significant First Amendment issues.

Poll Questions: Go To Menti. com And Use Code 74 64 62 Government Social Media And The First Amendment The Big Picture As a medium for communication between governments and/or government officials and their constituents, government social media necessarily implicates political speech that is protected by the First Amendment. Given these protected interests, governments and officials must act carefully to avoid unconstitutional censorship when moderating their social media accounts.

Poll Questions: Go To Menti. com And Use Code 74 64 62 Government Social Media And The First Amendment What Is Social Media? Social media refers to an online platform that allows users to share information or ideas with other users. Depending on the platform, this can include: • Creating public webpages (i. e. “profiles”) • Sending messages • Sharing images or videos • Generally disseminating information to numerous people

Poll Questions: Go To Menti. com And Use Code 74 64 62 Government Social Media And The First Amendment What Is Social Media? The size and popularity of social media companies have made them some of the largest and most influential companies in the world. These include companies that have become household names, such as: • • Facebook Twitter Instagram Myspace • Linked. In • Pinterest • Snapchat

Government Social Media And The First Amendment Poll: Do You Have A Social Media Account? 1. Yes 2. No

Government Social Media And The First Amendment Poll: What Social Media Do You Use? (check all that apply) 1. Facebook 4. Myspace 5. Linked. In 2. Twitter 6. Pinterest 3. Instagram 7. Snapchat

Government Social Media And The First Amendment Poll: Have You Ever Blocked A User? 1. Yes 2. No

Government Social Media And The First Amendment Poll: Have You Ever Deleted A User Comment Or Post? 1. Yes 2. No

Government Social Media And The First Amendment Poll: Who Sings “Ballad of a Dying Man”? (Don’t Cheat) Ballad of the Dying Man Eventually the dying man takes his final breath But first checks his news feed to see what he's 'bout to miss And it occurs to him a little late in the game We leave as clueless as we came For the rented heavens to the shadows in the cave We'll all be wrong someday

Government Social Media And The First Amendment Poll: Who Sings “Ballad of a Dying Man”? (Don’t Google It) 1. Father John Misty 2. Regina Spektor 3. Hozier 4. Josh Tillman

Government Social Media And The First Amendment How Widespread Is Social Media? The reach of social media is stunning. The largest social media platforms boast hundreds of millions, if not billions, of users, with roughly seven in ten American adults using at least one social media platform. This ability to directly reach constituents has also led many government officials, particularly those in elected office, to create social media accounts. For example, nearly every governor and member of congress has a Twitter account.

Government Social Media And The First Amendment

Government Social Media And The First Amendment

Government Social Media And The First Amendment

Government Social Media And The First Amendment How Widespread Is Social Media? Municipalities and municipal officials have similarly taken to social media as a way to inform and receive feedback from their constituents. As far back as 2011, two-thirds of counties and municipalities had already created at least one social media account. Today, the number is far larger, with most municipalities having at least one, if not several, official social media accounts.

Government Social Media And The First Amendment What Types Of Speech Are Protected By The First Amendment? The First Amendment prohibits the government from “abridging the freedom of speech. ” The strongest protections being given to “core” areas like political speech or religious speech. Other types of protected speech include commercial speech, school speech, and increasingly, online speech. However, these protections also have several well-established exceptions, such as limitations on speech that is obscene, incites violence, or poses a risk to public safety (ex: yelling “fire” in a movie theater).

Government Social Media And The First Amendment Government Social Media In The News Since the Supreme Court’s decision in Packingham, there have been several high -profile First Amendment lawsuits against high-ranking government officials at both the state and federal level over how they manage their official social media.

Government Social Media And The First Amendment Government Social Media In The News Credit: Forbes

Government Social Media And The First Amendment Government Social Media In The News Credit: WDRB

Government Social Media And The First Amendment Government Social Media In The News Credit: Washington Post

Government Social Media And The First Amendment Government Social Media In The News Credit: Portland Press Herald

Government Social Media And The First Amendment Government Social Media In The News There have also been several news accounts here in New York about local governments and officials that deleted comments and blocked critics who had posted on the official social media pages of the municipality and/or officials. These articles often led the municipalities or officials to modify their practices or written policies to quell public criticism and avoid possible litigation.

Government Social Media And The First Amendment Government Social Media In The News For example, Supervisor Joseph Saladino of the Town of Oyster Bay received criticism for deleting comments and blocking users on his official social media pages, which were also used as the Town’s official social media pages. Credit: Newsday

Government Social Media And The First Amendment Government Social Media In The News Following the Newsday article and mounting criticism, the Town of Oyster Bay restored its official “Town” social media accounts, while Supervisor Saladino continued to use his official page in an individual capacity. Credit: Newsday

Government Social Media And The First Amendment Brief Overview of First Amendment Law

Government Social Media And The First Amendment Finding A First Amendment Violation Courts use a multi-step process to determine if there has been a First Amendment Violation: 1. Is the speech at issue protected by the First Amendment? 2. If so, what is the forum and is it susceptible to forum analysis? 3. If so, what is the classification of the forum? 4. Did the government action violate the standards applicable to that forum?

Government Social Media And The First Amendment Is The Speech Protected Under The First Amendment? There is a large body of case law on the types of speech protected by the First Amendment, be it political speech, speech in schools, commercial speech, etc. Barring a violation of certain well-established limitations, such as on obscenity or the incitement of violence, communication with public officials is nearly always political speech or speech related to matters of public concern. This is “within the core of First Amendment protection. ” As government social media provides a medium for such communication, whether speech is protected is rarely contested.

Government Social Media And The First Amendment What Is The Forum / Is It Susceptible To Forum Analysis? These two questions are deceptively complicated, and require far more than just identifying the social media platform at issue. A threshold requirement forum analysis is that the forum is owned or controlled by the government. If it is not a government or government-controlled space, forum analysis does not apply at all.

Government Social Media And The First Amendment What Is The Forum / Is It Susceptible To Forum Analysis? Another consideration is that forum analysis only applies to government limits on private speech. If the government “is speaking on its own behalf, ” it is not subject to forum analysis or the usual limits on viewpoint discrimination. For example, in Walker v. Sons of Confederate Veterans, 135 S. Ct. 2239 (2015), the Supreme Court held that license plates are government speech. Thus, state governments may discriminate in what messages they approve for such plates, such as by denying a request for a vanity plate with the confederate flag on it.

Government Social Media And The First Amendment What Is The Forum / Is It Susceptible To Forum Analysis?

Government Social Media And The First Amendment What Is The Forum / Is It Susceptible To Forum Analysis? The application of forum doctrine must also be consistent with the “purpose, structure, and intended use of the space. ” To define a forum, courts look at the degree of access sought. For example, if a speaker seeks access to a park for a rally, that entire park would be the forum. In contrast, if the speaker wanted install a monument in the park to remain there in perpetuity, the forum would be more limited and subject to a different standard.

Government Social Media And The First Amendment What Is The Classification Of The Forum? The Supreme Court has recognized three types of forums under forum analysis, each of which is subject to its own standard for how and to what extent the government may limit speech. These forums are: • Traditional Public Forums • Designated (or Limited) Public Forums • Non-Public Forums

Government Social Media And The First Amendment What Is The Classification Of The Forum? Traditional public forums are “places which by long tradition or by government fiat have been devoted to assembly and debate, ” like a sidewalk or public park.

Government Social Media And The First Amendment What Is The Classification Of The Forum? A designated public forum is a non-traditional forum that has been made available for use as a public forum. For example, a municipal auditorium that has been made available for public events such as plays or concerts.

Government Social Media And The First Amendment What Is The Classification Of The Forum? A limited public forum is a designated public forum that has only been opened to a specific class of speakers. For example, a classroom that has been made available for after school use by student organizations, but not other groups. Lamb's Chapel v. Center Moriches Union Free School Dist. , 508 U. S. 384 (1993). Credit: The Messenger Gazette

Government Social Media And The First Amendment What Is The Classification Of The Forum? A non-public forum is “a space that is susceptible to forum analysis but is not by tradition or designation a forum for public communication. ” Examples include jails, military bases, or polling places. Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018). Fort Mc. Coy Army Base; Monroe, WI

Government Social Media And The First Amendment Relationship Between Forum Type And Level of Scrutiny The type of forum determines the standard for reviewing restrictions on speech: • Traditional Public Forum – Strict Scrutiny (i. e. restrictions must be “narrowly tailored to serve a compelling state interest”) • Designated Public Forum – Strict Scrutiny (though limited public forums may still restrict speech by those outside the allowed class of speakers) • Non-Public Forum – Rational Basis (restrictions need only be “reasonable”)

Government Social Media And The First Amendment Relationship Between Forum Type And Level of Scrutiny Regardless of the type of forum, the government is prohibited from engaging is what is known as “viewpoint discrimination. ” Viewpoint discrimination is a restriction on speech that would otherwise be permissible in the forum based upon its content, i. e. a restriction based upon the viewpoint being espoused by the speaker.

Government Social Media And The First Amendment Relationship Between Forum Type And Level of Scrutiny For example, allowing a pro-immigration group to hold a rally, but not an antiimmigration group, would likely be viewed as viewpoint discrimination.

Government Social Media And The First Amendment Relationship Between Forum Type And Level of Scrutiny The prohibition on viewpoint discrimination is especially important for government social media, as the content of users’ posts is often what motivates municipalities or officials to delete comments and/or block users. The next slide has several examples of responses to tweets by President Trump that would likely tempt deletion. However, as they clearly relate to the overarching post without being obscene, it is unlikely that there is a legal basis to do so.

Government Social Media And The First Amendment Relationship Between Forum Type And Level of Scrutiny Viewpoint discrimination is also important to government social media because it is prohibited regardless of the type of forum. Thus, by finding municipalities or officials engaged in viewpoint discrimination, courts can find First Amendment violations without addressing the thorny issue of forum classification.

Government Social Media And The First Amendment Packingham v. North Carolina

Government Social Media And The First Amendment Overview of Packingham In Packingham v. North Carolina, 137 S. Ct. 1730 (2017), the Supreme Court struck down a North Carolina law making it a felony for a registered sex offender to knowingly access a social networking site on which minors can be members. The decision likened social media to a traditional public forum, with broad dicta emphasizing the core First Amendment aspects of social media. However, the Court ultimately sidestepped whether social media was analogous to a traditional public forum, or even whether forum analysis should be applied at all.

Government Social Media And The First Amendment Packingham And Forum Analysis The First Amendment has historically protected free speech based upon the type of forum, with the broadest protections given to “traditional public forums. ” In Packingham, the majority declared that “[w]hile in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general, and social media in particular. ” However, the Court did not explicitly categorize the Internet as a specific forum.

Government Social Media And The First Amendment Social Media And Political Speech Packingham also touched upon the role of social media in facilitating political speech and communicating with elected officials. The Court’s description of Facebook was as a forum for users to “debate religion and politics with friends and neighbors. ” It also noted that Twitter allows users to “petition their elected representatives… in a direct manner, ” including nearly every governor and member of Congress.

Government Social Media And The First Amendment Social Media And Political Speech Ultimately, the Supreme Court concluded that social media offers “relatively unlimited, low-cost capacity for communication of all kinds. ” Given these First Amendment concerns the Court held the sweeping restrictions in North Carolina’s law were unconstitutional under the First Amendment.

Government Social Media And The First Amendment The Concurring Opinion Justice Alito’s concurring opinion is also notable for how it concurs on the merits, but attacks the majority’s dicta, writing: I cannot join the opinion of the Court, however, because of its undisciplined dicta. The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks… I am troubled by the Court’s unnecessary rhetoric.

Government Social Media And The First Amendment New Justices And An Uncertain Future With the departure of Justice Kennedy, who wrote for the majority in Packingham, it is unclear how Justices Gorsuch and Kavanaugh will impact future cases. However, the First Amendment remains an area that blurs the ideological divide.

Government Social Media And The First Amendment Post-Packingham Cases

Government Social Media And The First Amendment Introduction Since Packingham, civils rights organizations like the ACLU and Knight First Amendment Institute at Columbia University have filed several lawsuits alleging First Amendment violations related to government social media. In addition, several local governments, police departments, and officials have agreed to adopt new social media policies following letters from these organizations threatening litigation.

Government Social Media And The First Amendment Introduction This section will looks at how lower courts have been applying Packingham. However, given the timeframe associated with federal litigation, many of these decisions are either interlocutory or still subject to appeal. In the event that the Supreme Court agrees to hear appeals in any of these cases, it will be years before a decision is issued.

Government Social Media And The First Amendment Davison v. Loudoun County Board of Supervisors, 267 F. Supp. 3 d 703 (E. D. Va. 2017) was decided only a month after Packingham. Moreover, the Fourth Circuit Court of Appeals affirmed the lower court’s decision last month in Davison v. Randall, 912 F. 3 d 666 (2019), making it the first post-Packingham case to have been decided at the Circuit Court level.

Government Social Media And The First Amendment

Government Social Media And The First Amendment Brian Davison

Government Social Media And The First Amendment Davison v. Randall The question before the Fourth Circuit was whether Chair Phyllis Randal violated the First Amendment rights of Davison when Randall’s Facebook page banned the Virginia SGP page Davison managed through his personal Facebook page. The Fourth Circuit affirmed the lower court’s ruling and held that there was a First Amendment Violation, noting Randall’s Facebook page not a personal page but rather one that “helps businesses, organizations and brands” connect with people.

Government Social Media And The First Amendment Davison v. Randall In fact, Randall maintained both a personal and official Facebook page. Moreover, the official page explicitly invited constituents to reach out to her on Facebook, providing a variety of official contact information and stating: I want to hear from you on any issues…I really try and keep back and forth conversations on my county Facebook page or county email and they are subject to FOIA.

Government Social Media And The First Amendment

Government Social Media And The First Amendment Davison v. Randall The lawsuit arose from a comment left on a post by Davison, a local activist. Davison posed question at a meeting implying certain school board members acted unethically in approving financial transactions. Randall characterizes as “set up question” that “she did not appreciate. ” Randall later posted on Facebook about “what was generally discussed at the meeting. ” In response, Davison posted a comment with accusations against the Board of Supervisors and their families alleging conflicts of interest and kickbacks.

Government Social Media And The First Amendment Davison v. Randall According to Randall, she had no idea if accusations against the Board of Supervisors were true. However, she decided that it was not something she wanted to leave up on her page, and deleted the whole post, including Davison’s comment, and further banned Davison from the page. The next day, Randall reconsidered and unbanned Davison. Regardless, Davison filed suit alleging the temporary ban violated his First Amendment rights.

Government Social Media And The First Amendment Davison v. Randall – Color of State Law A central issue was whether Randall was “acting under color of law” within the meaning of 42 U. S. C. § 1983. While there is no specific formula for whether the challenged actions are linked to Randall’s official status, the Court cited several indicia of public office, including: Information about Randall’s office; • Solicitations for input on policy issues; and • Contact information and other items from her “about” page. •

Government Social Media And The First Amendment Davison v. Randall – Color of State Law In sum, the Court held that Randall had clothed her page with the power and prestige of her office. As such, the actions giving rise to Davison claim arose out of Randall’s official status, specifically her post about what happened at the public meeting she attended and Davison’s comment regarding same.

Government Social Media And The First Amendment Davison v. Randall – Public Forum The other issue was whether Randall’s Facebook page was a public forum. Randall’s page had all of the indicia of a public forum under Packingham and Zeran, 129 F. 3 d 327 (4 th Cir. 1997). The inclusion of the comment box and invitation for constituents to post comments reinforces that view. Randall argued that her page was a “private website” not public property not susceptible to forum analysis, or alternatively was “government speech”. However, the Court rejected both arguments.

Government Social Media And The First Amendment Davison v. Randall – Public Forum With respect to the argument that Randall’s page was private, the Court reiterated that Randall clothed her page with power and prestige of her office. The Court also explained that whether the page was private property is not determinative, citing, among other things, cases involving public access channels that are owned by cable companies but made available to the government.

Government Social Media And The First Amendment Davison v. Randall – Public Forum The Court also rejected that Randall’s page was government speech. While the Court did find that Randall’s posts were government speech, it held that the interactive component of the page (i. e. the comments section) was a public forum. The Court also noted that this case was factually distinct from the government speech cases that Randall relied upon, such as those holding the government can refuse to place a hyperlink to a group’s appeal about the municipal budget.

Government Social Media And The First Amendment Davison v. Randall – Public Forum Ultimately, the Court concluded its forum analysis upon determining that the interactive sections of Randall’s page were a public forum. While noting the next step would normally be to determine whether the page constitute a traditional or designated public forum, the Court found that this step was unnecessary where Randall’s actions constituted viewpoint discrimination, which is prohibited in both types of forum.

Government Social Media And The First Amendment Davison v. Randall – Other Interesting Points The Fourth Circuit also agreed with the lower court that allowing Davison to amend the complaint would be prejudicial, but rejected that it would be futile (i. e. would have been dismissed in any event) as Davison had raised a novel issue. Specifically, Davison’s proposed amendment argued that Loudoun’s decision to use Facebook was itself a violation of the First Amendment.

Government Social Media And The First Amendment Davison v. Randall – Other Interesting Points Davison’s theory focused on how Facebook’s rules allow individual “requesting” users to ban other personal profiles and pages, such that the banned users can no longer see posts authorized by requesting user. For example, when Randall banned Davison from her page, he became unable to see or respond to any comment Randall posted on the Loudon County Facebook page, which is also public forum. Thus, a third-party (Randall) had limited his ability to participate in a public form (the Loudoun County Facebook page).

Government Social Media And The First Amendment Davison v. Randall – Concurrence The concurring opinion in Davison joined the majority in full, but also raised two issues that may limit the scope of the Court’s decision under current precedents: 1. Whether any and all public officials should be treated equally in their ability to open a public forum on social media (chair v. individual members)? 2. What role a private company plays in hosting site, specifically as it relates to the platform’s rules and terms of service restricting speech?

Government Social Media And The First Amendment Davison v. Randall – Concurrence This second question is particularly important as it concerns who is responsible for burdens placed on speech. For example, hate speech is protected under the First Amendment, but social media companies have policies prohibiting hate speech on their platforms. Thus, while a government official might not be able to ban hate speech, that official could report it and effectively ban a comment and circumvent First Amendment. This has been dubbed “collateral censorship” legal scholars.

Government Social Media And The First Amendment Davison v. Loudoun County Board of Supervisors Qualifications Regarding Content Moderation The District Court wrote that officials can and likely should moderate their social media to maintain a useful forum. However, such moderation must be based on a neutral, comprehensive social media policy that is evenly applied to all users. This shows that officials can maintain control over offensive or off-topic comments if the procedure and standards for doing so are clear and content-neutral.

Government Social Media And The First Amendment Knight First Amendment Institute v. Trump Knight First Amendment Inst. at Columbia Univ. v. Trump, 302 F. Supp. 3 d 541 (S. D. N. Y. 2018) involved President Trump’s Twitter account. This case was the first to rule on the forum classification of social media, holding that Twitter was a designated public forum and thus subject to strict scrutiny.

Government Social Media And The First Amendment Knight First Amendment Institute v. Trump After holding that Twitter was a designated public forum, the Court concluded that blocking the plaintiffs for expressing political views that were contrary or critical of the President and his policy positions was viewpoint discrimination. As such, the President clearly violated the plaintiffs’ First Amendment rights.

Government Social Media And The First Amendment Knight First Amendment Institute v. Trump The Court’s decision also rejected two arguments by the Department of Justice: • That blocked users First Amendment rights were not violated because they could still read the President’s feed. • The President’s own First Amendment interests superseded those of users

Government Social Media And The First Amendment Knight First Amendment Institute v. Trump The Department of Justice filed its notice of appeal on June 4, 2018, and both parties have subsequently filed their appellate briefs. The appeal is currently awaiting oral argument before the Second Circuit.

Government Social Media And The First Amendment Morgan v. Bevin, 298 F. Supp. 3 d 1003 (E. D. Ky. 2018) took a different approach to government social media. In denying the ACLU’s motion for a preliminary injunction, the Court sided with Governor Bevin against the plaintiffs, who were blocked or had comments deleted from his social media page. This case also presented a unique twist in that in addition to manual content moderation, the pages used a keyword algorithm to block posts that were obscene, off-topic, or spam.

Government Social Media And The First Amendment Morgan v. Bevin The ACLU also filed a complaint against Bevin with the Kentucky Office of the Attorney General, claiming that Bevin violated the state’s Open Records Law by refusing to provide a list of the keywords used to filter the governor’s accounts. In December 2017, the Office of the Attorney General sided with the ACLU, and required the Governor’s Office to provide a print-out or screenshot of the keywords. Bevin later challenged that ruling in state court.

Government Social Media And The First Amendment Morgan v. Bevin The ACLU argued the social media pages were traditional public fora subject to strict scrutiny, while Bevin argued that they were limited public fora that could be regulated with reasonable, viewpoint neutral restrictions. The Court rejected both arguments, holding that forum analysis did not apply because the social media pages were personal speech by Bevin on privately owned channels, even if he was speaking on his own behalf as a public official.

Government Social Media And The First Amendment Morgan v. Bevin The Court further held that while the First Amendment gives citizens the right to express their views, they could not compel Bevin to listen, writing that there is “no constitutional right as members of the public to a government audience for their policy views. ” This case also does a good job of explaining the nuances of Twitter and Facebook such as “muting” and “hiding” comments, which stops short of blocking users but may still have First Amendment implications.

Government Social Media And The First Amendment Morgan v. Bevin Interestingly, the Court did not base its analysis on Packingham, except to quote the concurring opinion of Justice Alito that cautions against a rapid expansion of the Court’s First Amendment jurisprudence to social media. The Court’s decision also puts it at odds with the decisions in the cases previously discussed, like Davison and Knight First Amendment Institute.

Government Social Media And The First Amendment Morgan v. Bevin Since the ruling on the preliminary injunction motion, the case has progressed into a contentious discovery process, as the plaintiff sought to compel the production of certain documents and to depose Governor Bevin. The Court declined to order the deposition, but did direct Bevin to produce the documents sought. As the parties are now engaged in motion practice related to this discovery order, it does not appear that a determination on the merits will be forthcoming.

Government Social Media And The First Amendment Laurenson v. Hogan Like the previously discussed cases, Laurenson v. Hogan, 17 -CV-02162, involved claims by a plaintiff who was blocked from the Governor’s official Facebook page. In contrast to the previously discussed cases, however, in which the government officials vigorously fought the lawsuits filed against them, the case of former Maryland Governor Larry Hogan took a more conciliatory approach.

Government Social Media And The First Amendment Laurenson v. Hogan After talks with the ACLU, Governor Hogan settled the lawsuit by agreeing to: • Adopt a new social media policy that will govern Hogan's Facebook page; • Create a second Facebook page dedicated to providing a public forum where constituents can raise issues for the governor's attention; • Create an appeals process for constituents who feel their comments have been improperly deleted, or that they have been wrongfully blocked; • Pay $65, 000 for the plaintiff’s legal fees.

Government Social Media And The First Amendment Leuthy v. Le. Page In August 2018, the district court denied a motion by Maine Governor Paul Le. Page to dismiss the ACLU complaint against him for blocking individuals who posted critical comments on his Facebook page. In denying the motion, which is determined under a lower “plausibility” standard of proof, the Court cited the parties’ disagreement on the basic fact of “what exactly is the social media page in question. ”

Government Social Media And The First Amendment Leuthy v. Le. Page Plaintiffs analogized themselves to disfavored voices at a Town Hall meeting, and argued the Court should not condone the Governor’s actions any more than it would censorship of speech at in person proceedings. The Governor argued that by not being able to delete posts, he is adopting them as his own. Furthermore, without authority to delete posts, he would be forced to either broadcast a cacophony of messages with which he disagrees or change pages to a static site stripped of the networking features that define social media.

Government Social Media And The First Amendment Leuthy v. Le. Page Emphasizing the fact-intensive nature of the issue before it on the motion to dismiss, the Court noted the following factors as to whether Le. Page’s Facebook page was an official, rather than personal, social media page: • The history of the page; • The individuals who managed the page; • The identity verification in Facebook’s “Town Hall” feature; and • User permissions for posting and deleting comments.

Government Social Media And The First Amendment Leuthy v. Le. Page While mentioning Knight First Amendment Institute v. Trump in a footnote, the Court did not rely on this decision. In contrast, the Court devoted an entire section of its decision to the reasoning of Mogan v. Bevin and why it explicitly declined to follow that decision. Ultimately, the case was settled in December 2018, with Le. Page agreeing to unblock the users at issue. This likely reflected that Le. Page was scheduled to leave office in early 2019, having been term-limited from running for re-election.

Government Social Media And The First Amendment A Final Case Of Note In German v. Eudaly, 2018 WL 3212020 (D. Ore. 2018), the court dismissed a First Amendment claim by an individual who was blocked from a city official’s personal Facebook page, holding it was not government action where the city official in question also maintained a separate, official Facebook page.

Government Social Media And The First Amendment Tips For Adopting A Social Media Policy

Government Social Media And The First Amendment Overview Given this burgeoning body of case law on government social media and the First Amendment, it would behoove all municipalities and elected officials to draft and adopt a social media policy to head off potential legal challenges. This section will look at key provisions that every social media policy should have. In addition, the social media policy for the Town of Huntington, where I serve on the Town Board, has been included in the materials as an example.

Government Social Media And The First Amendment Content Limitations The most important aspect of any social media policy is to place limits on the forum, and clearly delineate what content is and is not permitted on the page. Examples of content limitations may include prohibitions on comments, links, or embedded media that are any of the following:

Government Social Media And The First Amendment Content Limitations • Off-topic; • Obscene (sexual, violent, or pornographic); • Promote discrimination based on protected characteristics; • Threaten violence or promote illegal activity; • Defamatory or personal attacks; • Promote the invasion of privacy (ex: posting personal information); • Political advocacy for or against candidates and/or ballot initiatives.

Government Social Media And The First Amendment Consequences For Violations In addition to defining what content is inappropriate, a social media policy should also explain what remedial action the municipality or official may take in response to a violation. This will likely include one or more of the following: • Blocking the individual who posted the content; • Deleting the content at issue; • Reporting the content to the site administrator.

Government Social Media And The First Amendment Consequences For Violations A policy can also provide for warnings to be issued, or that these actions may be taken without prior warning to the individual in question. Similarly, the policy might provide that users will only be blocked for a limited period of time, depending on the number and nature of the offenses.

Government Social Media And The First Amendment Consequences For Violations Finally, any policy that permits remedial action like blocking a user should also provide contact information (ideally an email address) to which an appeal can be made. This narrow avenue of due process may help stave off legal challenges for specific cases, and create a paper trail in the event that blocking an individual or deleting a comment must be defended in court.

Government Social Media And The First Amendment Legal Disclaimers – FOIL To the extent that a social media page is a channel for communications from or to a municipality or government official, social media policies should be clear that the content of pages, including user comments and follower lists, are subject to the Freedom of Information Law (FOIL).

Government Social Media And The First Amendment Legal Disclaimers – Legal Notice Every social media policy should make clear that comments on a social media page do not constitute legal notice against the municipality or official. Similarly, the policy should explain that social media comments do not constitute valid requests for public records or government services, and should instead direct users to the proper channels for making such requests.

Government Social Media And The First Amendment Disclaimers Regarding Third-Party Content Social media pages will inevitably receive legitimate comments that reflect views with which a municipality or official do not want to be associated. To account for this, social media policies should state that users’ comments, including embedded content and links, do not reflect the views of the municipality or official, and that the municipality or official has no control over third-party content or sites.

Government Social Media And The First Amendment Disclaimers Regarding Third-Party Content In a similar vein, social media policies should prohibit the use of official content by third-parties in a manner that incorrectly suggests an association, relationship, or endorsement by the municipality or official that originated the content.

Government Social Media And The First Amendment Disclaimers Regarding Third-Party Content In a similar vein, social media policies should prohibit the use of official content by third-parties in a manner that incorrectly suggests an association, relationship, or endorsement by the municipality or official that originated the content.

Government Social Media And The First Amendment Amending The Policy And Accepting Its Terms Finally, the evolving legal landscape on the First Amendment and the Internet means that any policy adopted today may have to be amended to account for new developments. Policies should therefore provide that the social media policy may be revised at any time, and such revisions become effective upon being posted. Similarly, policies should provide that using the social media site constitutes acceptance of the applicable social media policy terms in effect at that time.

Government Social Media And The First Amendment Ethics In Municipal Employee Use Of Social Media Public employers must be careful in regulating its employees’ social media and in deciding whether to hire, fire, or take other employment action based on the use or content of the social media. While public employees have a limited or no expectation of privacy in their office, desk, locker, etc. , public employees do not surrender their First Amendment rights just because they are employed by the government. However, the government is permitted to restrict the speech of public employees in certain situations.

Government Social Media And The First Amendment Ethics In Municipal Employee Use Of Social Media Whether a public employee’s speech is protected by the First Amendment starts with whether the topic spoken by the employee was as a citizen on a “matter of public concern. ” If it was, the next question is whether the government was justified for treating the employee’s speech differently from the general public.

Government Social Media And The First Amendment Ethics In Municipal Employee Use Of Social Media Whether the speech is a matter of public concern is analyzed on “the content, form, and context of a given statement, as revealed by the whole record, ” content being the most important. Matters of public concern have been found relating to speech regarding public safety, policy protection, governmental wrongdoing and misconduct, and exposing wrongdoing by government officials.

Government Social Media And The First Amendment Ethics In Municipal Employee Use Of Social Media Finally, government officials must be careful in taking disciplinary action against an employee for the employee’s social media activities that might be protected First Amendment speech, including in the hiring process if a review of a potential employee’s social media is undertaken. Overzealous action may result in a violation of the employee’s First Amendment rights, and open the official or municipality to a lawsuit for violating those rights.

Government Social Media And The First Amendment Government Social Media In The News The case of James Squicciarini v. The Village of Amityville, 17 -cv-6768 (E. D. N. Y. 2017) provides a good example of this risk. Squicciarini, a volunteer firefighter, sued the Village for retaliation after he was allegedly disciplined for exercising his First Amendment right to engage in political speech on social media. As a result of this lawsuit, the Village has amended its social media policy.

Government Social Media And The First Amendment Concluding Thoughts

Government Social Media And The First Amendment Conclusion While case law on the First Amendment and the Internet remains in its infancy, these cases give a strong indication of what the future may hold. The Supreme Court’s decision in Packingham, which likened the Internet to a traditional public forum, suggests that courts will apply broad First Amendment protections to online speech, as was done in Davison and Knight First Amendment Institute.

Government Social Media And The First Amendment Conclusion That being said, decisions such as Morgan v. Bevin caution that the scope of First Amendment protections online are still undefined, and may vary significantly between jurisdictions until the Supreme Court clarifies the appropriate standard. Until then, governments and their officials should develop clear standards for using and moderating their official social media, lest they inadvertently run afoul of the First Amendment.

Government Social Media And The First Amendment Power. Point and Additional Reading This Power. Point will be made available online at www. cuthbertsonlaw. com/news. Some additional sources worth reviewing include: • Mark Cuthbertson & Matthew De. Luca, Delete At Your Own Risk: How Government Social Media Can Run Afoul Of The First Amendment, New York Law Journal, March 9, 2018. • Kate Klonick, The New Governors: The People’s, Rules, and Processes Governing Online Speech, 131 Harv. L. Rev. 1598, April 10, 2018. • Steve Coll, The Digital Public Square, The New Yorker, August 20, 2018.

The Law Offices of Mark A. Cuthbertson 434 New York Avenue Huntington, NY 11743 Tel: (631) 351 -3501 Fax: (631) 427 -9507 www. cuthbertsonlaw. com

Government Social Media And The First Amendment Town of Huntington Social Media Policy This page is maintained by the Town of Huntington (“the Town”) as a means of communication between Town government and members of the public. All content on this page, including comments submitted and its list of subscribers, is considered public records and subject to Freedom of Information Law provisions. Any individual accessing, browsing or using a Town Social Media site accepts without limitation or qualification the Town’s Social Media Policies (“Policies”). These terms and conditions apply only to Social Media sites (defined here as third party hosted online technologies that facilitate social interaction and dialogue, such as Facebook, Twitter and You. Tube, and hereinafter referred to as a “Social Media site”) managed by the Town of Huntington.

Government Social Media And The First Amendment Town of Huntington Social Media Policy The Town of Huntington maintains the right to modify these Policies without notice. Any modification is effective immediately upon its posting on the Social Media Policy page unless otherwise stated. Continued use of a Town Social Media site following the posting of any modification shall constitute an acceptance of such modification. All users of a Town Social Media site are also subject to the site’s host’s own policies. The Town has no control over a third party site’s policies or their modifications. The Town also has no control over content, commercial advertisements or any other postings produced by the Social Media site that appear on the Town’s Social Media site as part of the site’s environment.

Government Social Media And The First Amendment Town of Huntington Social Media Policy The Town operates and maintains its Social Media sites as a public service to provide information about Town programs, services, projects, issues, events and activities. The Town assumes no liability for any inaccuracies these Social Media sites may contain and does not guarantee that the Social Media sites will be uninterrupted, permanent or error‐free. The Town welcomes public comments as a means of furthering sharing of ideas and advancing public dialogue. However, comments containing any of the following shall be deemed inappropriate content subject to removal and/or restrictions by the page Administrator or his/her designee(s):

Government Social Media And The First Amendment Town of Huntington Social Media Policy a. Comments not related to the original topic, including random or unintelligible comments; b. Comments in support of or, in opposition to, political campaigns or ballot measures; c. Profane, obscene, violent, sexual or pornographic content and/or language; d. Content that promotes, fosters or perpetuates discrimination on the basis of race, creed, color, age, religion, gender, marital status, status with regard to public assistance, national origin, physical or mental disability or sexual orientation; e. Sexual content or links to sexual content; f. Defamatory or personal attacks; g. Threats to any person or organization;

Government Social Media And The First Amendment Town of Huntington Social Media Policy h. Solicitation of commerce, including, but not limited to, advertising of any business or product for sale; i. Conduct in violation of any federal, state or local law; j. Encouragement of illegal activity; k. Information that may tend to compromise the safety or security of the public or public systems; l. Comments that may cause an invasion of privacy; or m. Content that violates a legal ownership interest of any other party.

Government Social Media And The First Amendment Town of Huntington Social Media Policy A comment posted by a member of the public on a Town Social Media site is the opinion of the commenter or poster only. Publication of a comment does not imply endorsement or agreement by the Town of Huntington. The Town reserves the right to deny access to Town Social Media sites to any individual who violates these Policies, at any time and without prior notice. The Town also reserves the right to report any violation of an individual site’s policies, such as Facebook’s Statement of Rights and Responsibilities, with the intent of that site taking appropriate and reasonable responsive action.

Government Social Media And The First Amendment Town of Huntington Social Media Policy Comments are monitored only during business hours, and thus information conveyed after hours may not be received until the next business day. A communication made through Town Social Media sites shall in no way constitute a legal or official notice to the Town of Huntington. For example, a post or comment that asks or purports to ask for public records shall not be considered and will not be treated as a public records request. A post or comment that requests or purports to request Town services shall not be considered and will not be treated as a request for services. A request for records, a request for services and any other communication related to a specific project or program should be directed to the appropriate Town department, agency or office in person, by mail, email or phone or through the online portals available on Huntington’s official website, www. Huntington. NY. gov

Government Social Media And The First Amendment Town of Huntington Social Media Policy The Town may select links to other Social Media sites and outside websites that offer helpful resources for users. Once an individual links to another page or site, the Town’s Policies no longer apply and you become subject to the policies of that page or site. The Town is not responsible for the content that appears on these outside links and provides these links as a convenience only. Users should be aware that these external pages and sites and the information found on them are not controlled, provided or endorsed by the Town. The Town reserves the right to delete links posted by outside individuals that violate the Town’s Policies at any time without notice.

Government Social Media And The First Amendment Town of Huntington Social Media Policy Prior permission is not required to link to Town Social Media sites; however, entities and individuals linking to Town sites shall in no way suggest that the Town has any relationship or affiliation with them or that the Town endorses, sponsors or recommends the information, products or services provided by or by way of those sites. Prior permission is not required to embed Town Social Media site content; however, entities and individuals embedding content shall not present Town content as their own or otherwise misrepresent any of the Town’s Social Media site content. Furthermore, they shall not misinform users about the origin or ownership of Town Social Media site content. Embedded content from Town Social Media sites shall in no way suggest that the Town has any relationship or affiliation with that organization or that the Town endorses, sponsors or recommends the information, products or services of that site.

Government Social Media And The First Amendment Town of Huntington Social Media Policy All information and materials generated by the Town and provided on Town Social Media sites are the property of the Town. The Town retains copyright on all text, graphic images and other content produced by the Town and found on the page. Users may, however, print or duplicate material for personal non‐commercial use, provided that material so reproduced retains the copyright symbol or other such proprietary notice intact on any copyrighted material so duplicated. Please include a credit line reading: "Credit: Town of Huntington Facebook (or Twitter or You. Tube or other Social Media site) Page" or "Courtesy of Town of Huntington. "

Government Social Media And The First Amendment Town of Huntington Social Media Policy Commercial use of text, Town logos, photos and other graphics is prohibited without the express prior written permission of the Town of Huntington. Use of the Town logo is prohibited for any non‐governmental purpose. Any person reproducing or redistributing a third party copyright must adhere to the terms and conditions of the third party copyright holder. Holders of a copyright who believe the Town has failed to provide an appropriate credit line are asked to notify the Public Information Officer with detailed information about the circumstances, so that the proper credit line can be added or the material in question removed. If you have any questions or concerns about the Town’s Social Media Policy or its implementation, please contact the Town’s Public Information Officer at llembo@huntingtonny. gov.