Posted by: Patricia Salkin | July 22, 2021

The evolving legal landscape of social media for local government officials

This post was authored by Amy Lavine, Esq.

Social media websites like Facebook and Twitter have fundamentally changed the ways in which government agencies and public officials communicate with the public. As one court explained: 

Social media have recently become a crucial venue for public officials to disseminate news and information, and an equally crucial opportunity for the public to express their thoughts and opinions in response. Facebook, Twitter, and other social media platforms provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. These platforms are revolutionary in their ability to increase civic engagement with elected officials through instantaneous and direct communication opportunities.

 Leuthy v. LePage, 2018 WL 4134628 (D ME 8/29/18)

In the land use context, local agencies and public officials can communicate with more people and generally increase their overall level of community engagement by using social media in conjunction with more traditional forms of public outreach and other legally required public notices. The acceptance and use of social media by government agencies and public officials has generated its own unique set of legal problems, however. Some of these issues have been litigated, but the courts in many jurisdictions have yet to consider these issues. Moreover, it’s almost a certainty that new legal concerns will arise in this area as more public officials use social media and the variety of social media platforms continues to evolve and expand.

One of the social media issues that the courts have considered in some detail is the extent to which public officials can moderate their social media pages by deleting comments and blocking users. Several courts have concluded that public officials’ social media pages constitute “public forums” for purposes of the First Amendment, and as result, deleting comments and blocking users is a form of unconstitutional viewpoint discrimination. See, e.g., Davison v. Randall, 912 F.3d 666 (4th Cir 2019), Robinson v. Hunt Cty., Texas, 921 F.3d 440 (5th Cir. 2019), One Wis. Now v. Kremer, 354 F. Supp. 3d 940 (WD Wis 2019), Swanson v. Griffin, 2021 WL 930615 (DNM 3/11/21). This was the holding in a Second Circuit decision involving former President Donald Trump and his Twitter page, Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir 2019), but the Supreme Court vacated the judgment in 2021 on the basis that the case was moot, Biden v. Knight First Amendment Inst. at Columbia Univ., 2021 WL 1240931 (4/5/21). A few cases have, however,have distinguished social media accounts that were established by public officials for private or personal reasons, such as campaign pages. See, e.g., Wagschal v. Skoufis, 2021 WL 1568822 (2d Cir 4/22/21), Campbell v. Reisch, 986 F.3d 822 (8th Cir. 1/27/21), Phillips v. Ochoa, 2021 WL 1131693 (D Nev 3/24/21), West v. Clark County, 2021 WL 196396 (Wash. App. 1/20/21)

The discourse around controversial development proposals and other contentious land use issues has also been reshaped by social media, often in ways that encourage divisiveness and a lack of decorum. A Utah court confronted this sort of situation in the 2021 case Lehi City v. Rickabaugh, 2021 UT App 36 (4/1/21), which involved a mining development project near Traverse Mountain. Rickabaugh was deeply opposed to this proposal, and after a public meeting where several people made comments in support of the project he reacted later that evening by sending dozens of Facebook messages to these supporters, including sending more than 30 message to one woman in particular. Although he soon reconsidered this approach and sent an apology message, explaining that he got “really drunk and angry about the insane idea that mining in a residential area is ok,” the woman he’d targeted reported Rickabaugh’s “barrage” of messages to the police before she saw his social media apology. Rickabaugh was ultimately convicted for electronic communication harassment based on his Facebook outburst, and the Utah Court of Appeals upheld his conviction on appeal. The court concluded that the statute was not facially overbroad or impermissibly vague, emphasizing that the charge included a limiting element of “intent to intimidate, abuse, threaten, harass, frighten, or disrupt the electronic communications of another,” and this specific intent requirement “significantly vitiates any claim that its purported vagueness could mislead a person of common intelligence into misunderstanding what is prohibited.” Rickabaugh’s messages were also “unambiguously proscribed,” as they included such communications as calling the woman a “b—” and a “c–,” as well as making derogatory comments about another project supporter’s wife and mother. “These vulgar and offensive messages,” the court explained,”were “insults, taunts, or challenges” that were “likely to provoke a violent or disorderly response” within the meaning of the statute… Because the statute clearly proscribed Rickabaugh’s conduct, he cannot complain that it is vague as to others.”

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