Pitfalls of the Public Forum

Public entities such as cities, counties, special districts, and law enforcement agencies have long operated websites as a means of communicating with the public. For many years, this worked well: A traditional website pushing out information in one direction-to the public-does not establish a public forum, and that means the entity does not risk violating First Amendment rights when it excludes content. (Vargas v. City of Salinas, 46 Cal. 4th 1, 37 n. 18 (2009).)

Enter Facebook, Twitter, and other social media platforms. Public entities and agencies have joined the revolution and now regularly use social media to interact with and provide information to community members and constituents. Two hallmarks of social media platforms, of course, are their interactivity and the ability of the public to comment on official posts. When a public entity creates a social media presence that invites public commentary, it arguably has established a public forum protected by the First Amendment.

But the scope of the forum can be contractually limited by the terms of service, which bind all users of the site. In addition, when establishing a social media presence, a public entity should clearly indicate that it intends to create a "limited" public forum-as opposed to a traditional open public forum akin to a public park or street corner. In the latter, speech restrictions are subject to the highest level of scrutiny and must be narrowly drawn to effectuate a compelling government interest. (Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46 (1983).) In a limited public forum, a public entity has somewhat greater latitude to regulate speech. However, any restrictions still must be reasonable and neutral as to the speaker's viewpoint. (Christian Legal Soc. Chap. of the Univ. of Calif. v. Martinez, 561 U.S. 661, 679 n. 16 (2010).)

Almost certainly, a public entity can prohibit and remove from a limited public forum comments that are obscene or pornographic, or that promote illegal activity, violate copyrights, or constitute a specific or imminent threat. Similarly, comments that violate the host site's terms of service likely can be prohibited and removed pursuant to the contractual rights of the host site.

More difficult and complex questions relate to dealing with comments that are critical of the entity or that express a divergent viewpoint. Even in a limited public forum, a public entity cannot delete posts simply because they are critical or because the entity disagrees with them.

After the Honolulu Police Department's Facebook page administrator removed comments by two local residents in 2012 and banned them from using the page, the pair sued the department and administrator in federal court. The department's posting guidelines made the mistake of stating that the Facebook page was "a forum open to the public." The guidelines also prohibited obscenities, sexually explicit or racially derogatory language, defamatory comments, and comments suggesting or encouraging illegal activities. After one plaintiff's comment was removed, he posted to the site that the department was "getting [its] Internet Nazi powers rolling early in the morning." The department's Facebook page administrator replied: "@Christopher, you've had a history of using defamatory terms in your comments. The posting guidelines are clear. ... Your comments have been deleted." The other plaintiff's comments also were deleted, and he was barred from commenting on the page after arguing with the administrator over the city's restric- tions on carrying concealed weapons.

The case settled in 2014 while a motion for summary judgment was pending: The police department agreed to develop new social media policies, and ultimately it was ordered to pay about $31,000 in attorneys fees. (See Hawaii Defense Found. v. City and County of Honolulu, No. 12-CV-00469 (D. Haw.).)

A similar lawsuit was brought last fall against San Diego County Sheriff William Gore and the Facebook page administrator for his office. (Karras v. Gore, No. 14-CV-02564 (S.D. Cal.).) The terms of use for the sheriff's department's page stated, "We are not opposed to dissenting opinions on topics we post, but we ask that our social conversations remain civil, respectful and on topic. ... We invite any users with opinions on any topic to post anything they want on their social media accounts. We simply ask for a degree of civility when making comments on our pages. Any user would likely expect the same of those postings made by others to their pages."

According to the lawsuit, the following comment was removed within an hour after the plaintiff posted it: "Sheriff Gore: Do you plead the 5th about your involvement in the MURDER of an unarmed woman who was holding her baby? REMEMBER RUBY RIDGE." The suit alleges that "[d]efendants continue to cherry-pick comments on the Sheriff's Department Facebook fan page in order to cultivate a self-serving political image. Defendants continue to punish those that fail to conform to the government message by banning them from further discussion."

News of the lawsuit led to scores of public comments on the department's Facebook page, and ultimately the account was deleted. A sheriff's department spokeswoman said in a declaration that the agency "permanently closed its Facebook page to avoid the time, expense, and hassle necessary to enforce the department's policies regarding comments to its Facebook page."

These lawsuits illustrate the challenges public entities face as they navigate the murky waters of social media and the First Amendment. Until a court provides clear guidance on the parameters of social media, public forums, and take-down policies, public entities must be mindful of free-speech implications. To limit their liability, they must tolerate criticism and irritating comments. Page administrators should avoid engaging in online debates with commenters and instead react positively and provide factual information, if appropriate.

Public entities' social media guidelines should be carefully drafted and reasonable. They also should incorporate the host site's terms of use (or community standards); that way, comments that run afoul of a site's terms of use can be reported directly to the host for removal, which may allow the agency to head off a First Amendment claim.

Clarifying that social media participation in a limited public forum is subject to a website's terms of use takes the focus away from whether the public entity has the power to remove content. It also effectively shifts the burden to the user to demonstrate that his or her speech is permitted. This potentially converts the speech question to a contract analysis, which could render it more difficult for the poster to prevail.

Whenever any content is deleted from a page it should be retained, and a record should be kept of why. And unless the speech clearly falls into an unprotected category, First Amendment challenges can be anticipated.

Traci Park, a partner at Burke, Williams & Sorensen in Los Angeles, represents private-sector management and public entities in employment litigation. She regularly advises clients on social media issues.

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