Social Media Policies

1. Local Government SeminarJanuary 31, 2019 Social Media Policies Derra Purnell, Attorney

2. What is social media?

3. What is social media?

4. Types of social media use Use by elected officials Use on behalf of the city Use on city time Use on city equipment Use on personal time Use on personal equipment Use for investigations**

5. IP laws Campaign finance National Labor Relations Act FLSA HIPAA Why do we need a policy? 1stamendment 4th amendment Open Meetings Act Public Information Act Discrimination Harassment Procurementlaws

6. How to regulate? Step 1) Identify the type of social media use being regulated Step 2) Identify the goal of each type of regulation Step 3) Identify the limits on that type of regulation - 1st Amendment - federal laws - state laws - potential liability

7. Goals Protect 1st amendment rights of public, employees and elected officials Avoid discriminating, harassing, obscene, illegal, defaming or misleading posts Keep employees/officials from breaking the law Protect the city from liability Promote the city’s goals for social media use

8. Forum Classification • Pubic Forums - those areas which traditionally have been devoted to assembly and public debate, such as public streets, sidewalks, and parks • Limited Public Forums - those forums which the government has voluntarily opened for use by the public or certain speakers for expressive activity like City Council meetings • Nonpublic Forums - those which neither by tradition nor government action have become forums for public communication

9. If it looks like a duck…

10. …it’s probably a public forum Social media open for general discussion on all topics may be treated as a public forum – Ex. Mayor’s Facebook page Social media open only for limited purposes or topics may be deemed a limited public forum – Ex. City e-bulletin board for reporting potholes Commenting on official business on social media can establish a public forum – Ex. Building official responds to a complaint about an inspection on a person’s Facebook page

11. Limitson Public Forums Speech may not be suppressed unless it is necessary to achieve a compelling governmental interest. Time, place, manner content neutral narrowly tailored leaves open ample alternative channels for expression

12. Limits on Limited Public Forums • Same limits as public forum • But, access may be restricted to entities similar to those which have previously been allowed access

13. Limits on Non-public Forums • Speech may be restricted so long as: • the regulations are reasonable and • do not attempt to suppress expression because of public officials' opposition to the speaker's views

14. Examples to keep in mind Can the Mayor unfriend someone from her Facebook page? Can receiving notice of a defective sidewalk on the City’stwitter account increase the City’s liability? Can the City be liable for discrimination based on an employee’s posts? Can you tell a city employee not to ever talk about work on their Facebook page?

15. Blocking Users Can the Mayor unfriend someone from her Facebook page? Maybe not. If the Mayor’s page becomes a public forum, blocking users violates their first amendment rights. Knight First Amendment Inst. v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y. 2018); Davison v. Loudoun County Board of Supervisors, 267 F.Supp.3d 702 (E.D. Va. July 25, 2017).

16. Davison v. Loudoun • Chair of the Board blocked a user from her Facebook page, then unblocked the next morning • User complained that the blocking violated his First Amendment rights • Court found a First Amendment violation

17. Notice via Social Media Can receiving notice of a defective sidewalk on the City’s twitter account increase the City’s liability? Maybe. A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred…The notice requirements provided …do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant's property has been damaged. Sec. 101.101 Tex. Civ. Prac. & Rem Code

18. Notice via Social Media Notice of (1) a death, injury, or property damage; (2) the governmental unit's alleged fault producing or contributing to the death, injury, or property damage; and (3) the identity of the parties involved may constitute actual knowledge. A federal magistrate judge in San Francisco approved service of a lawsuit via Twitter.

19. Liability for Employee Posts Can the City be liable for an employee’s posts? A municipality is almost never liable for an isolated unconstitutional act on the part of an employee. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).

20. But… A municipality can be held liable if a deprivation of a constitutional right is inflicted pursuant to an official policy or custom. Municipal liability requires proof of three elements: (1) an official policy (or custom), of which (2) a policy maker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose moving force is that policy or custom. Robinson v. Hunt Cty., Tx., No. 3:17-CV-0513-K, 2018 WL 1083838, at *4 (N.D. Tex. Feb. 28, 2018) (Internal Citations omitted).

21. Regulation of Employees Can you tell a city employee not to ever talk about work on their Facebook page? No, Section seven of the National Labor Relations Act (NLRA) provides employees the right, among others, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.

22. And… The Supreme Court has long recognized that public employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers, operations which are of substantial concern to the public. Were they not able to speak on these matters, the community would be deprived of informed opinions on important public issues. City of San Diego v. Roe, 543 U.S. 77, 82(2004)(per curiam) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 572 (1968)).

24. General Dos Disclaim often – Provide short disclaimers, required and suggested, for multiple kinds of social media use. Heed the cries for help – Provide reporting procedures for crimes, emergencies, potential hazards, and other complaints. Keep a copy – Provide for records retention. Be consistent – Social media policies that are not consistently enforced are more likely to be struck down by a court as infringing on 1st amendment rights. Use what you got - Incorporate anti-harassment, anti-retaliation, anti-discrimination, and security policies.

25. More General Dos Separate business and pleasure (and Facebook accounts) – Encourage separate accounts for employees and elected officials. There can be only one – Limit official use to specific people; provide procedures and accountability for records retention. Limit that public forum – Consider 1-way communication options for official city business. Work is work - Treat posting at work, on city equipment, or on behalf of the city the same as any other workplace behavior. Heads up – Provide for giving notice of policy violations to employees before taking action against them.

26. General Don’ts Don’t stick (the City’s) head in the sand – Avoiding the problem is not the solution. Don’t turn private forums public – Encourage employees and elected officials to be aware of the subject, the audience, and the account being used. Don’t be vague – Vague policies are more likely to be held facially invalid by a court. Don’t draft a social media policy and never look at it again – The law is changing quickly, so review the policy at least once per year.

27. Questions dpurnell@olsonllp.com 713-533-3800