What are the limits on government use of social media? If a city has a Facebook page, can it remove distasteful comments? profane ones? racist ones?
Professor Lyrissa Lidsky explains in her recent article, Public Forum 2.0, that the answers to these questions isn’t always easy. The Supreme Court’s decisions on public forum and government speech are complex., she points out, creating a “maze” of different categories of speech. She breaks them down into five:
1. The traditional public forum, including public streets, parks, and sidewalks. The state is prohibited from imposing content-based restrictions on speech in these forums unless those limits are “necessary to achieve a compelling state interest and . . . narrowly drawn to achieve that end.” Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 45 (1983). Content-neutral limits (such as time, place, or manner) are allowed if they are “narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels of communication.” Id. Lidsky maintains that is unlikely this category applies to social media because the Court “has signaled clearly that the category is defined by the historical use of government property.”
2.The designated public forum, which applies when a government clearly indicates that it is designates the forum for public use. These forums are treated the same as traditional public forums.
3. The limited public forum is one the government designates for use by certain groups or for certain topics. For example, a school district can limit an area for use by students or restrict a meeting to speech about school-board business. The government’s creation and application of these limits must be reasonable and viewpoint neutral. As an example, the Supreme Court upheld a law school’s rule that all student groups, in order to receive school funding, must accept “all comers” to leadership positions, meaning the school could refuse to fund a Christian group that prohibited people with contrary beliefs from being leaders. Christian Legal Society Chapter of the University of California v. Martinez, 130 S.Ct. 2971 (2010). As Lindsky points out, this category becomes murky when courts try to determine whether a government is applying its rules is a reasonable manner. For example, the Supreme Court has also prohibited a university from cutting funding to a Christian newspaper, reasoning that the school could not exclude a group from expressing religious viewpoints because it allowed discussion of religion as a subject matter more generally. Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995).
4. The nonpublic forum, including anything that’s not a traditional public forum or designated by the government as a public forum. In these areas, the government may impose time, place, and manner restrictions and exclude speakers as long as the exclusion is “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Perry, 460 U.S. at 49. The distinction between this category and a limited public forum is clear in theory, but difficult to pin down in reality because an area can be “designated” a limited public theory simply because of a pattern or practice of its use in that manner.
5. Government speech is a newly created category that recognizes, in Lidsky’s words, that “the government is permitted to use media to communicate its views to citizens, and when it does so, it need not include opposing viewpoints.” The most-prominent example comes from the Court’s 2009 decision in Summum v. Pleasant Grove City, 129 S.Ct. 1125, allowing a city to refuse to erect a Summon religious monument in a public park, even though there was already a Ten Commandments monument in the park. The Court said that the monument represented the government’s own expression of speech, and the government “is entitled to say what it wishes, and to select the views that it wants to express.”
So what are some take-aways for local governments using social media? It’s a bit unclear. But Lidsky makes these suggestions. First, “[a] non-interactive Facebook page controlled by a government actor would doubtless be treated as government speech, meaning that private speakers have no First Amendment rights to speak in those forums.” But an interactive site, she says, may be labeled a “designated” or “limited” public forum, thus limiting the government’s ability to police comments made on its site, though the government may retain some ability to limit profanity. Finally, she argues that “if a government actor is very careful in setting up its social media site, it can usually guarantee that the site is either government speech or a nonpublic forum and can therefore retain maximum control over speech that occurs there.”
I encourage you to read the whole article, which is available on SSRN. Lidsky eventually recommends a new approach to free-speech law as it relates to government use of social media.