An officer in the City Police Department at which you are employed receives an award for commendable service.  The Police Chief posts an announcement and his praise of the officer on the Police Department’s Facebook page.  In the midst of the congratulatory posts from the public, two citizens post comments sharply criticizing the Department.  You and your colleagues take this in stride.  Then come harsh and insulting comments, strange ruminations about conspiracies and other planets, personal, anonymous attacks on members of the police force divulging supposed aspects of their personal life, descriptions of violent use of force incidents that apparently never occurred, and vitriolic attacks on individuals not even connected to the Department.  What do you do?  What can you do?  A recent case has shed light on the government’s ability to regulate speech in connection with programs the government itself creates.  It is important for free speech rules regarding the government’s use of social media.

On June 18, 2015, the United States Supreme Court issued a 5-4 decision in Walker v. Texas Division, Sons of Confederate Veterans, holding that specialty license plate designs approved and issued by the state of Texas constitute government speech.  Walker involved a free speech challenge by the Texas Division of the Sons of Confederate Veterans (“SCV”) to a decision by the Texas Department of Motor Vehicles Board rejecting a specialty Texas license plate depicting a Confederate battle flag.  The SCV argued that Texas had created a public forum of sorts in its system of issuing specialty plates, and that Texas had engaged in improper censorship and viewpoint discrimination by failing to approve the Confederate flag plate but approving most other types of plates.  The U.S. Supreme Court in the Walker, however, found that the Texas license plate program did not create a “public forum,” but instead a system in which Texas itself was effectively “speaking” to the public through the license plate messages.  The Supreme Court found this was demonstrated, among other ways, by the fact that the State evaluated and pre-approved the license plate designs submitted to it.  Since it was the government that was speaking, the Supreme Court reasoned, the government was effectively free to pick and choose specialty plates as it saw fit.  Thus, it was free to reject the Confederate battle flag plate, without offending constitutional free speech principles.

As many commentators have pointed out, the Walker case has broad application to public entities and their ability to regulate communications in particular areas.  Indeed, Walker has very significant implications for the ability of agencies to moderate commentary on their social media sites.

Cities, special districts, police departments, and other local government agencies are increasingly augmenting their presence on-line by hosting social media activities.  These agencies either maintain a website in which they post on certain topics, and the public is provided a space to provide comments, or agencies can themselves maintain a Facebook page or Twitter account, for example, on which the public can participate by way of commentary.

What First Amendment issues must a government agency address is establishing its own social media site?

The First Amendment free speech clause, a central part of the Bill of Rights, forbids the government from engaging in unlawful censorship.  Thus, subject to narrow exceptions, a city cannot prohibit certain views from being expressed in one of its public parks, for example, or favor some types of content over others in any venue created as a forum for public expression on any topics.

The following describes forum analysis in a nutshell.  Determining what type of “forum” is involved determines to what extent the government can regulate speech in that particular venue.  There are thought to be four types of forums: traditional public forums (like a city park), designated public forums (e.g., a government space opened up to be used for expression the same way a city park is), limited public forums (e.g., some government employee message boards), and non-public forums (government-owned spaces not used for expressive purposes, like warehouses or offices).  U.S. Supreme Court precedent has established that it is difficult for the government to restrict speech in traditional or designated public forums, but easier on balance to restrict speech in limited public forums and non-public forums.  Even in these latter types of forums, however, a speech restriction must be reasonable in the eyes of the court, and “viewpoint-neutral,” meaning in general terms that the government cannot suppress some viewpoints but allow others on a particular topic.

If a social media site maintained by the government is deemed to be a designated public forum, for example, then someone whose comment or post is deleted by that agency based on the viewpoint it expresses could have a First Amendment claim that the government is censoring the speech.  Indeed, in 2012, the Honolulu Police Department faced a challenge to its decision to remove two local residents’ comments from its Department Facebook page.  The residents argued that the Police Department had created a public forum in its maintenance of the Facebook page, and that removal of their posts constituted illegal censorship.  The Department’s guidelines, described the page as “a forum open to the public,” yet the Department allegedly removed the residents’ posts simply because they were critical of the Department.  This Honolulu Police Department case eventually settled with a payment by the Department of attorneys’ fees, and an agreement to revise its social media policies.

The primary approach an agency has in this scenario is to have a policy, carefully vetted by legal counsel, that sets forth what comments are authorized and what are not.  For example, the policy can specify that obscene, defamatory, and other similar types of comments are not permitted.  The policy can also specify that comments have to relate to the matter originally posted (in the example above, the officer’s promotion).  But that policy itself presumably must be designed to satisfy the stringent demands of forum analysis, including that the policy be “viewpoint-neutral,” and the agency must be able to justify its restrictions on certain types of comments in a way that will satisfy forum analysis requirements.

The 2015 Walker decision, described above, is important because it offers agencies a possible way out of the strictures of forum analysis in the maintenance of government social media accounts.  With government speech, the government has significant latitude in the message it conveys.  If what is at issue is not a forum, but instead government speech, the government has substantial authority to limit the message being conveyed.  Government speech is an alternative way of viewing the scenario: it asks the Court to view an agency’s social media site not as the hosting of speech by members of the public (subject to certain rules), but instead the government itself speaking, by effectively selecting comments/posts to offer to the public (and choosing not to offer others).

How does a government agency persuade a Court to view its social media site as government speech and not a public forum of some type?

This requires a closer look at the U.S. Supreme Court’s reasoning in the Walker case, and the features of the Texas license plate program that led the Court to conclude it involved government speech.

In Walker, the Supreme Court relied on three points to arrive at its conclusion.

1. Historically, the Court found, license plates have communicated messages from states with various slogans and images. The Texas license plates were no different, as the state has a number of specialty plates depicting everything from support for the Girl Scouts to a favorite college.

2. The Court determined that Texas license plates “are often closely identified in the public mind” with the State. The Court analyzed the Texas Transportation Code’s sections concerning use and selection of license plates.  The license plates have a number of items connecting them to the state of Texas, including the word “TEXAS” at the top of the plate, the fact that all vehicle owners in the state must display a license plate issued by the state, that the Texas Vehicle Code provides that the State owns the license plate designs, even if designed by a private individual, and that there are specific procedures that must be followed when disposing of the plates.  The Court compared the Texas license plates to a government ID, on which governments restrict messages conveyed.

3. The State maintains direct control over the messages conveyed on the specialty plates by requiring approval of any and all specialty plates.

A government social media site can satisfy many of these considerations that led the Walker Court to view the system as government speech.  First, historically, there is less of a track record of social media conveying State messages, just because social media is a relatively new phenomenon.  But if an agency has consistently and for many years used social media to convey it own messages, a Court may find this consideration from Walker satisfied.  Second, in the same way a government entity’s on-line and social media presence may be identified “in the public mind” with that agency.  Finally, if the agency already does use its social media guidelines applied to public comments, or other considerations, to select what messages it posts, then this can be used to satisfy the third consideration in Walker, i.e., that the agency maintain direct control over the messages conveyed.

As this issue continues to arise, courts analyzing whether a public entity can selectively choose comments posted on its social media page will be the next frontier in free speech analysis.  Carefully structuring the policies applicable to government social media, and consulting with counsel, are key to putting into place a program that serves the government agency and the public and complies with the First Amendment.