More than 65 percent of the Internet-using public uses social networking sites. In May, having reached more than 900 million users, Facebook issued one of the largest IPOs in history. Twitter has become so popular that tools like Klout are available to rank and monetize users’ influence on the world. For a city government to fail to consider using social media to connect with the public would be to miss the opportunity to take advantage of this revolution in how people interact with one another.
For cities, these technologies present both risks and benefits. The benefits are clear: Social media provides a way to connect with constituents, to announce events in advance, to respond to concerns and to promote information about the city. Best of all, in an era of diminishing tax revenue, using social media is largely free. However, like many new technologies, this one can present some legal risks.
The good news is that attorneys can take steps to ensure their clients are getting the most out of social media without setting themselves up for litigation. Many of these principles extend to a wide variety of public agencies.
Cities around the country have rapidly expanded their presence on social media over the past decade. Although hard numbers are difficult to find, a growing number of California cities now have a presence on Facebook, Twitter and YouTube.
A 2010 report from the University of Pennsylvania’s Fels Institute for Government concluded that the cities that report having the most positive experiences with social media are those that adopt a strategy involving both institutional buy-in and individual creativity. When elected officials take a strong interest in promoting the city through social media and when staff is fully trained and made to feel empowered in using it, the experience can be very positive. Likewise, the more cities post, the more they interact with constituents, and the more they experiment, the better they find their experience. Finally, many cities find that they have overstated some of the expected risks, such as legal issues, costs and opening the door to public criticism.
Some creative ways to use social media include safety updates and videos from police chiefs and other officials. Twitter is particularly useful for spreading information about real-time events, like traffic jams and construction projects that might interrupt someone’s day. One city manager quoted in the Fels Institute report periodically searches for the city’s name on Twitter and responds personally when citizens have complained about speeding city vehicles or jackhammering outside offices. Some use of social media is more ambitious: The state of Washington is launching a pilot program to allow citizens to register to vote via Facebook.
As part of their social media presence, it’s important that cities adopt a policy explaining how the city expects to use social media and how its staff will operate it. A strong policy will have two parts: one instructing city staff on the proper use of social media and establishing which office is in charge. The other part will lay out guidelines for constituents and outside users, clearly stating what acceptable use of the city’s social network is and spelling out guidelines for commenting on the city’s posts.
A clear comment moderation policy is necessary because perhaps the most fundamental characteristic of social media is its ability to allow people to connect to one another. The downside of this increase in connectivity can be an increase in hostility, offensive language and rude behavior online. “Trolls” have a way of appearing in any online discussion. As governmental entities, however, cities have a responsibility under the First Amendment to not illegally interfere with speech. City staff will have a strong temptation to delete critical posts. Those instincts must be resisted!
The law surrounding government use of social media is quickly changing and courts have yet to comprehensively apply First Amendment doctrines, which developed in the context of newsprint, to the Internet. Nonetheless, a city’s Facebook page is likely a “limited public” forum for First Amendment purposes. This means that the city may restrict the discussion to a designated topic, but it cannot censor participants’ speech unless the interference is narrowly tailored to a compelling governmental interest. Most city social media policies define hateful, discriminatory, obscene, off-topic or blatantly commercial comments as being subject to deletion. Merely critical or misinformed comments do not fall into that category and should remain, despite the heartburn they may cause city staff or council members.
So if a city announces an upcoming festival or event on its Facebook wall, there will doubtless be grousing (but also praise!) in the comments section. Someone may complain that the event is a waste of the city’s tax dollars. Another may complain that the festival’s subject matter is offensive. Someone else may vent about some other subject entirely. A city may not remove comments merely for being offensive or misinformed — these reasons would not meet the narrowly-tailored test that courts are likely to apply.
Many cities have found, however, that their fears about negative comments were overblown. Despite worries about deluges of abusive comments, most city managers in the Fels Institute study reported that the positive comments vastly outweighed the negative. One technique to keep the discussion civil is to, whenever possible, require people to provide their real names before commenting. Facebook is particularly useful in this regard, since its policies require users to sign up with their real names. Numerous studies have shown that stripping commenters’ anonymity also strips the vitriol from their posts.
A separate issue will be that elected officials will use the city’s social media to promote their campaign. Again, city attorneys should encourage their clients to fight this urge. Under Government Code §8314, elected officials and public employees may not use public resources, including the city’s computer systems, for campaign activity.
Likewise, elected officials must be careful not to violate the Brown Act by using social media. The Brown Act prohibits elected officials from evading public scrutiny by communicating with each other about the subject matter of their office outside of noticed public meetings. Whether communication via social media can be a violation of the Brown Act is a topic of some debate. Some suggest that postings on the Internet are the equivalent of a letter to the editor, which would be allowed under the act.
However, the interactive nature of social media demonstrates why caution may still be warranted. For instance, a council member may post a comment to an article on the local newspaper’s website, to which a second and then a third council member respond. Perhaps a fourth one weighs in on the discussion on Twitter, and a fifth member retweets it with a positive or negative spin. Before long, a quorum of the city council will have given their opinion on the issue, and none of the discussion has met the public notice requirements of the Brown Act. A 2001 attorney general opinion concluded that council members could violate the act by holding serial discussions over email, even if they took precautions to post those emails on the city website. While the attorney general’s opinions are not binding precedent, this opinion counsels caution by elected officials discussing city business over social media.
Another sticky question facing cities looking to use social media is the question of whether a city’s actions on social media are public records, and if so, whether cities are required to preserve them. No court has yet addressed whether the Public Records Act requires that a city preserve its Facebook posts or tweets. However, given that the technical requirements to do so are not onerous, out of an abundance of caution it is a good idea to do so. There are a number of products that allow cities to archive Facebook, Twitter and YouTube posts with little additional work by staff.
A related question is whether the comments become public records. One opinion, by the Florida attorney general, suggests that this outcome is a possibility. However, cities have dealt with this problem in two ways. First, to avoid having more of commenters’ personal information become public records than necessary, a city should set up its Facebook page so that commenters do not have to “friend” the city before posting, which would provide the city access to the user’s personal profile. Second, cities should post a disclaimer on their sites noting that comments could become public records.
In sum, cities should not hesitate to take advantage of social media in order to promote themselves and their services to citizens, so long as they are willing to take some simple advice from their city attorneys. •