Nothing New Under the (Legal) Sun: Social Media Traps for the Unwary?
New social media technologies provide dynamic, accessible ways for municipalities to communicate with the public and perhaps with a whole new generation of citizens. However, as with all communication, social media presents a number of legal issues municipalities need to recognize. It may be dressed up as something new, but most social media technologies present similar challenges for local officials as their more traditional counterparts.
Draw a Parallel
Compare new technologies to older, more familiar methods of communication. Blogs are informal online journals, similar to a municipal newsletter or letter to the editor and column in a newspaper. Some authors permit the public to post comments on a blog as well, which is a bit like an electronic listserv or e-mail messaging board. Twitter is, essentially, a microblog limited to 140 characters. Social networking sites such as Facebook and LinkedIn are like a combination of many traditional communication methods: messaging (like e-mail), online chatting (like instant messaging) and posting comments on others’ pages (like a message board). YouTube and Flickr are places to post videos (like a cable channel) and photos (like a website or bulletin board).
Most municipalities have some experience with the legal issues involving traditional media. New communication methods are really no different, with one exception: speed. Therefore, it is important to consider potential pitfalls of these exciting new tools before jumping into the quick-moving stream of social media.
Public v. Personal
No matter what the medium, municipal communication should be limited to official municipal business, such as notices, minutes, forms, information, alerts, contact information and ordinances. For example, a tweet might alert citizens that a snow emergency has been declared, that the polls have opened for elections or that the town meeting warrant has been posted. Video of selectmen’s meetings might be posted on YouTube. A blog might keep the public informed of the progress on a bridge reconstruction.
However, when officials and employees begin using these technologies for personal commentary, the unintended consequences can be significant. If an official discloses confidential information on a website, blog, social networking site or any other way, he or she may face removal from office (RSA 42:1-a) and may expose the municipality to liability as well. If comments are defamatory (described more below) they may also result in liability for the municipality. Even comments that are merely inaccurate or misleading can tend to affect public confidence in municipal government and compromise a board’s ability to govern effectively.
In addition, personal comments by any official can affect the legality of a board’s decisions. The Planning Board and ZBA, for instance, are each required to hear testimony and to gather information at a public hearing on all applications before them. Each board member is supposed to remain impartial, and the board is not supposed to decide the case before it reaches the deliberation stage after the hearing has closed. This impartiality is required by statute and, in fact, any board member who has prejudged the case or who is unable to set aside personal bias is disqualified from participating in the hearing or decision for that matter. See RSA 673:14, I. If a disqualified member participated in a case, a court could vacate that decision and the board would have to start all over again. See Appeal of Keene, 141 N.H. 797 (1997). Even if the decision is upheld, the town or city may have to defend a costly legal challenge in court. Statements made by any official on a chat, blog, e-mail, website or other forum about individual applications or even general matters of interpretation of the zoning ordinance or local regulations can lead to real or perceived problems with prejudgment and bias. This can result in the unnecessary waste of the municipality’s money, time and resources to defend and sort out those problems.
Comments by a single member of a municipal board or committee could also create confusion about whether those comments belong to the member or to the entire board. Boards and committees act only by majority vote. See, e.g., RSA 41:8 (a majority of selectmen is required to act). A single member should be very careful in expressing opinions, answering questions or providing explanations for official matters when he or she purports to do so on behalf of the entire board. Unless great care is taken to clarify when a person is speaking for a board and when that person is speaking solely for him- or herself as an individual, these comments can create confusion among the public and be very misleading.
Is It Defamatory?
In New Hampshire, the tort of false light or defamation includes both oral (slander) and written (libel) defamation. A “defamatory" statement tends to lower the plaintiff in the esteem of any substantial and respectable group, even if that group is quite a small minority. Touma v. St. Mary’s Bank, 142 N.H. 762, 766 (1998). Defamation occurs when a person fails to exercise reasonable care in publishing (in print or by speaking) a false and defamatory statement of fact about the plaintiff to a third party without any valid privilege. Pierson v. Hubbard, 147 N.H. 760, 763 (2002). A statement of opinion is generally not actionable as defamation unless it is reasonably understood that the opinion is based upon defamatory facts. Duchesnaye v. Munro Enters., 125 N.H. 244, 249 (1984).
Defamatory statements might be privileged in certain situations. For example, statements made in the legislative process or during judicial proceedings are absolutely privileged. Other statements might be protected by a qualified privilege if they are published on a lawful occasion, in good faith, for a justifiable purpose and with the belief, founded upon reasonable grounds, that the statement is true. Pickering v. Frink, 123 N.H. 326, 329 (1983).
There is no specific privilege for local officials conducting town business, so they generally are not protected from liability for making any defamatory statements during meetings or over the internet. However, it is important to note that a defamatory statement must be about the plaintiff, rather than just a generally insulting or politically incorrect statement. Comments of a more general nature, referring to broad groups of people rather than any person in particular, probably are not “defamatory" although they may tend to harm the credibility of the person making them.
Furthermore, when the public is permitted to comment or post on a blog, website or other medium, those comments might also be defamatory. The citizen who makes the comment may be liable--but the municipality might, too! By “publishing" these statements (that is, posting them on YouTube, Facebook, a blog or a website) or, possibly, by failing to remove them, the municipality may also become liable for the defamatory statement in the same way it could be liable for rebroadcasting the video on the municipal cable channel.
Some forms of social media involve exchanges of information between municipalities and citizens. A blog might be set up to accept public comments on an issue, or officials might have e-mail or chat exchanges with citizens. These exchanges may need to be edited to avoid publishing defamatory statements, to keep the posts on the topic at hand or to avoid obscenity or vulgarity.
Editing and deleting posts by the public may inadvertently violate the First Amendment rights of free speech. When the federal First Amendment right to free speech applies, the inclusion of one viewpoint without equal opportunity for all other viewpoints, or the editing or rejecting of citizen articles based on content, might expose a town or city to liability. See, e.g., State v. Hodgkiss, 132 N.H. 376, 382 (municipalities may regulate protected speech only in a content-neutral manner); see also Bonner-Lyons v. School Committee of City of Boston, 480 F.2d 442 (1973) (city distribution system may not be used to support and promote views of only one group, must provide equal opportunity for all groups to avoid violating free speech rights). A blanket prohibition of the views of any private citizens on a municipal blog or website is not likely to violate any citizen’s First Amendment right to free speech. The First Amendment to the U.S. Constitution protects the rights of citizens to express their views in a “public forum" such as a commercial newspaper, a personal blog or website, a parade or a sign. However, a town website, blog or Facebook page is not ordinarily a public forum.
“[T]he First Amendment does not guarantee access to property simply because it is owned or controlled by the government." United States Postal Service v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 129 (1981). “The crucial question is whether the manner of expression is basically compatible with the normal activity of a particular place at a particular time." Grayned v. City of Rockford, 408 U.S. 104, 116 (1972). This means that some government sites are simply not open for expression the way that others are. See, e.g., Adderley v. Florida, 385 U.S. 39 (1966) (jails); United States Postal Service v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114 (1981) (private mail boxes); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) (interschool mail system).
A website or blog is not a physical “location" but if the same logic is applied, it seems unlikely it would be considered a public forum unless public expression were “basically compatible with the normal activity" of that medium. A municipal website or blog is a tool of the municipal government that should be intended to facilitate municipal business, and would be limited generally to public purposes.
On the other hand, once a municipality intentionally opens the forum up for public expression, it may be a “designated" or “limited" public forum. See, e.g., Del Gallo v. Parent, 557 F.3d 58 (1st Cir. 2009). A blog might ask for public suggestions about saving energy in municipal buildings, or feedback about the efficiency of a municipal service. It would be appropriate in that case to limit the public comments only to the stated subject. However, if comments opposing the governing body’s preferred plan were always edited out or, if negative feedback were always rejected, a court might find that the municipality had discriminated based on the content of the speech, which is not permissible. See, e.g., State v. Hodgkiss, 132 N.H. 376, 382 (municipalities may regulate speech only in a content-neutral manner). The municipality could, of course, still limit comments to a certain length, to a certain number per day or by any other content-neutral method.
Advocacy and Electioneering
One potential use of social media is to distribute information regarding local government initiatives, suggestions, proposals and plans. Background information regarding warrant articles and other issues is likely to be of interest to voters, of course, and may be communicated in a variety of ways. However, the direct advocacy for or against a particular warrant article, candidate or other measure should be avoided, regardless of the media through which it is communicated.
The extent to which local governments may use public funds and resources to advocate on behalf of a specific proposal or action is not yet clear. The U.S. Supreme Court has determined that, under the U.S. Constitution, the government may use tax dollars to endorse its own policy measures without violating the First Amendment. Johanns v. Livestock Marketing Ass’n, 544 U.S. 550 (2005). A September 2009 decision of the U.S. District Court for the District of New Hampshire found that, in certain circumstances, it is permissible for a municipality to use its communication channels to express its own views through “government speech" which is exempt from the First Amendment. It may even be possible for the government to “speak" by selecting only certain speech of third parties to present and communicate through its website or other channel. See Sutliffe, et al. v. Epping, et al., U.S. Court of Appeals, 1st Circuit, No. 08-2587, September 17, 2009.
However, this area of the law is not yet fully settled in New Hampshire. A significant body of case law suggests that some government advocacy may go too far. When local officials spend tax dollars to persuade the legislative body (that is, town meeting voters) to establish a policy in the first place, the answer from Johanns is much less clear. A variety of state and federal courts have long held that government officials may not spend public funds advocating or opposing a ballot measure unless they offer an opportunity for opposing views to be heard. See, e.g., Bonner-Lyons v. School Committee of City of Boston, 480 F.2d 423 (1st Cir. 1973); Greenberg v. Bolger, 496 F.Supp. 756 (E.D.N.Y. 1980); Citizens to Protect Public Funds v. Board of Ed. Parsippany-Troy Hills TP, 98 A.2d 673 (N.J. 1953). Even the Court in Sutliffe observed “there may be cases in which a government entity might open its website to private speech in such a way that its decisions on which links to allow would be more aptly analyzed as government regulation of private speech."
It is also important to note that RSA 659:44-a prohibits any town employee from electioneering while in the performance of his or her official duties, or to use government property, including but not limited to, telephones, facsimile machines, vehicles and computers, for electioneering. “Electioneering" is defined in the law as an action that is “in any way specifically designed to influence the vote of a voter on any question or office." Violation of this law is a misdemeanor. Therefore, no municipal employee should take part in publishing anything with municipal funds that would be considered electioneering under this statute.
One additional concern that should not be overlooked is the administrative burden that the use of social media can create. For example, if selectmen create a blog to correspond with the public, that correspondence should be limited to municipal business. Someone would have to review every posting in advance to determine whether and to what extent the comments included personal or off-topic matter that should not be posted. This might be time-consuming and would almost inevitably raise legal questions requiring consultation with an attorney. Furthermore, to the extent the First Amendment right to free speech applied, the editing or rejecting of postings based on content might expose the municipality to liability under the First Amendment. See, e.g., State v. Hodgkiss, 132 N.H. 376, 382 (municipalities may regulate speech only in a content-neutral manner).
Maintain Control. Unless the legislative body votes to vest control of social media in another board or official, the governing body (selectmen, manager/council, mayor/aldermen) has ultimate responsibility for the use of social media. This responsibility includes decisions regarding which technologies to use, policies that will apply and how to spend the money appropriated for this purpose. Municipal employees or officials who are delegated responsibility or permitted to use such technologies should be required to follow all policies established by the governing body.
Develop a Policy. While no law requires the governing body to create policies regarding the use of social media, it is highly advisable to do so. Websites, blogs and all other social media can expose a municipality to liability. The best way to avoid these pitfalls is to have a carefully written policy for everyone to follow. Any such policy should be reviewed by the municipal attorney before it is formally adopted by the governing body, and then periodically reviewed with the attorney to see if adjustments need to be made. Don’t be afraid to adjust the policies as appropriate.
Disclaimers Aren’t a Silver Bullet. While a disclaimer may be informative, it is generally ineffective in reducing or eliminating a municipality’s risk of liability. A website, blog, Facebook account or other networking tool will be run or endorsed by the municipality and funded with municipal money. Since all of these communication channels will be under the control of the governing body, and they will remain ultimately responsible for content and distribution, it is hard to see how a municipality could disclaim responsibility for that content. If a municipality wishes to include disclaimers, those disclaimers should be reviewed by the municipal attorney before they are posted to determine whether they will, in fact, be helpful.
Christine Fillmore is a Staff Attorney with the New Hampshire Local Government Center’s Legal Services and Government Affairs Department. For more information on this and other topics of interest to local officials, LGC’s legal services attorneys can be reached Monday through Friday from 8:30 a.m. to 4:30 p.m. by calling 800.852.3358, ext.384.