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Public Social Media Sites: Limits and Responsibilities

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Social media is how we, as individuals, communicate. Among other things, we use social media to share, convene, entertain, engage in political discussions, obtain news, perform research, and to communicate just about any type of information. Many businesses in the private sector have also embraced social media and are successfully appealing to customers, advertising, and compiling data which was previously difficult or costly to obtain. In spite of its prevalence among individuals and private businesses, few public institutions embrace or encourage social media use, fearing uncertain laws, weighty obligations, and potential legal repercussions.

What could we accomplish if public institutions embraced social media? Many argue that, like individuals, public institutions such as city and county offices, courts, and schools could and should use interactive social media to share information, engage in real-time discussions, problem-solve, collaborate, increase efficiency, and promote transparency between the government and its citizens. While there are myriad reasons for the lack of government-sponsored social media sites, the main concern is the First Amendment (free speech). For a thorough legal analysis of the First Amendment issue, see “Government Sponsored Social Media and Public Forum Doctrine Under the First Amendment: Perils and Pitfalls” by Lyrissa B. Lidsky, published in The Public Lawyer, Volume 19, Number 2, Summer 2011.

In essence, it is unclear in most instances whether the government can legally remove speech that is posted on interactive public social media sites, even if the speech is hateful, offensive, replete with profanity, or otherwise inappropriate. What should or must the government do if a citizen posts confidential or private information on a public social media site? For example, a school posts a picture of a student making a winning goal during a championship soccer game. With authorization, this post was appropriate. However, a parent of a student from the losing team then posts a comment on the school’s social media site about how the student was only able to make the goal because she is taking a medication for her named medical condition which enhances her performance. Perhaps another disgruntled parent retorts that the coach should be fired, and that he was fired from his last school for molesting his team members. Pretty soon, a number of parents and students are posting profanity and even some implicit threats which identify the home addresses of the student, coach, and school administrators. The posts may contain some inaccurate information, but they may also contain some truth.

Should such posts be removed by the government? Can they be removed? Does the government have an obligation to monitor public comments? Should the comments be reported to the police because of the threats and safety concerns? Must the government maintain the posts as public records? Should any students be disciplined? While these may seem like remote or unlikely examples and questions, they are not; nor are the answers to the questions clear.

While social media has wonderful benefits, it will not be a benefit that can be fully enjoyed by our citizens and government until First Amendment case law evolves and until our society takes responsibility for its online speech. Since our laws do not clearly address how to deal with such speech, many public institutions and their legal advisors will likely continue to be cautious about permitting interactive social media use until our laws adequately address social media and free speech, or provide further guidance about how to regulate such speech. In the mean time, some public institutions are currently utilizing interactive social media in spite of the uncertainties. In such cases, the public institutions should consult legal counsel about how to best protect themselves and their users. It is also important that each citizen who uses public social media sites be committed to engaging in responsible speech, refraining from any inappropriate or questionable speech, and reporting/flagging as appropriate.

Penelope Glover is Senior Counsel with Atkinson, Andelson, Loya, Ruud & Romo.  She is a member of the firm’s Education Law Practice Group and the leader of the Education Law Technology Group.  Ms. Glover represents public school districts, county offices of education, community colleges, and universities throughout California in the areas of technology, human resources, and student discipline. Image courtesy of imagerymajestic/FreeDigitalPhotos.net.

Categories: Legal Issues, Social Networking

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