One of the inherent features of social media usage is that it allows people to express themselves freely. Provided their posts are within moral and social guidelines established by the particular website.
In December of 2016, this principle was put to the test in Elkhart, Indiana, when a lawsuit was settled in favor of a citizen who had been denied access to the city’s Facebook page for posting commentary critical of city officials, and their handling of public accommodations and facilities for the disabled.
First Amendment rights violated
In the period leading up to his blockage from the city’s Facebook page, Mr. Richard Wolf had several of his critical remarks deleted by the city’s Facebook page administrators. Ultimately he was banned altogether. That’s when Mr. Wolf decided to retain counsel and fight the process, feeling that his right to freedom of speech had been violated.
The American Civil Liberties Union agreed. In October, they provided a team of lawyers to take up Wolf’s case against the City of Elkhart. In a landmark decision, District Court Judge Theresa Springmann ruled that since the city maintained a Facebook page which allows public comments, no one should be banned from posting comments solely on their viewpoint.
City officials resolved to update their policy regarding the usage of social media. They paid $2,300 in attorney fees to Mr. Wolf. As well, he was of course reinstated by page administrators working on behalf of the city.
Limits of social media policy
From this instructive case and an almost carbon-copy situation which is underway in Martinsville, Indiana, about three hours south of Elkhart, the limits of social media policy are being made clear, not only to the public but also government officials. You have to allow speech.
In effect, when any government agency chooses to maintain a social media page (including Facebook and all other social media), which expressly permits public commentary, it must not remove postings because of the perspective that was taken.
It is perfectly acceptable for the government agency to have its own stated policy about commentary on the public page. However, that policy must not conflict with the First Amendment rights of users who decide to post comments expressing their opinions.
Value of a social media policy
These incidents occurring around the country should not be taken to mean that there is no value to having a social media policy in place. A useful set of guidelines established by government organizations on their Facebook pages and other social media will help keep public commentary language-appropriate. Therefore avoiding the format of personal attacks on individuals or groups of individuals.
We recommend having a policy that has a clear outline on:
- What is acceptable speech
- What is not tolerated (swearing, racism, sexism, threats, etc)
- How these will be handled
As an example, the first offense is a warning comment. 2nd offense is a warning comment and message back to the individual privately to outline the policy violation. 3rd offense is that the comment in violation is hidden (not the user blocked). The key is having clarity on what type of speech is not allowed. Thus, not just banning due to a perspective that differs.
Furthermore, no restrictions should be placed on posts simply because of their perspective. This would not be a conflict with First Amendment rights regarding freedom of expression. In essence, the cases springing up in America which are centered around this issue, are extensions of First Amendment interpretation as applied to modern technology.
It has always fallen under the auspices of the Supreme Court and other judicial bodies to interpret the extent of protection provided to individuals under this constitutional right. This is the precise area of the law being tested in many municipalities now. It would seem that the courts are applying the same interpretation of First Amendment rights to the privilege of posting comments on social media, even when critical of government organizations.