Terms of Use for Your Government Facebook Page

Facebook Terms of Use ImageAs governmental entities moved into the digital age and began using social media, they pushed out content to their citizens in hopes of educating and informing the public about items of interest.  As this practice evolved, more and more agencies began allowing comments on some of these platforms like Facebook, on their blog page or even on their website.  Public comments have become common for most agencies that engage with their community.  In fact, it is a best practice taught by many social media experts. 

What happens when the comments are laced with profanity or hate speech?  What happens when the agencies platform is flooded with comments critical of the very agency allowing those comments? 

These are good questions that have not been fully answered yet by the courts.  However, there are some principles, guided by a ruling from the US Supreme Court, which shape this debate.

In Perry Education Association v. Perry Local Educators’ Association 460 U.S. 37 (1983) the Supreme Court decided this free speech issue that may be relevant today for purposes of this discussion.  The Supreme Court defined three types of forums:

  1. Traditional Public Forum
  1. A Non-Public Forum
  1. A Designated or Limited Public Forum

A Traditional Public Forum provides the highest first amendment protection and generally includes public parks, sidewalks and other areas that have been open to political speech and debate.  The government cannot discriminate against speaker viewpoint.

A Non-Public Forum is one not traditionally used to express opinions, like an airport.  Again, viewpoint discrimination is not allowed.

A Designated or Limited Public Forum probably offers the closest applicable designation that can be applied to public speech on a governmental Facebook page, blog or website.  A Designated or Limited Public Forum is usually at a time and location which is not a traditional public forum such as a meeting room at state universities.  The government may discriminate against classes or speakers or types of speech, but they cannot discriminate based on viewpoint.

Lauri Stevens, with LawsCommunications and founder of the S.M.I.L.E. Conference, is generally recognized as a pioneer in recommending the Limited Public Forum approach for law enforcement Facebook pages and many of the recommendations for Terms of Use pages for law enforcement.  

So how does this help governmental entities limit certain comments on their social platforms or even hide or delete those comments?

As a governmental entity, you must establish the location where you are allowing comments as a limited public forum.  This can be done by publicly designating the platform as a Limited Public Forum and outlining your terms of use. 

In order to restrict certain types of speech, a governmental entity must designate Facebook, their blog or a website they are using as a Limited Public Forum and outline their terms of use.  The terms of use can restrict profanity, hate speech, threats, commercial posts or off-topic posts.  Follow this link to watch a video of how to create a custom Facebook tab and how to download a sample terms of use policy.  I am not an attorney and I am not giving legal advice.  I recommend a governmental entity have an attorney review their practice in this area. 

In 2012, the Hawaii Defense Foundation, a gun-advocacy group, filed a federal lawsuit against the Honolulu Police Department alleging First Amendment violations because comments made on their Facebook page were arbitrarily removed and censored even though the Honolulu Police Department had created a forum open to the public.  Basically, the lawsuit was alleging the speech was removed because the department didn’t like it or agree with it.

According to many commentators, this lawsuit is believed to be the first of its kind in the United States.

Listed below are a few examples of the comments that were removed.

 “As good as officers are, the reality is that they are not magical creatures who can teleport around.  Your protection is your responsibility.  Rely on yourself.”

The islands executive department, especially HPD, is a total bag job when it comes to structure.  They cry if another department might get something that benefits or protects them; hell – the HPD leadership terrorists even testified against other state departments from getting Tasers to protect themselves.”

Considering that the Chief of Police routinely denies CCW permit applications, what is HPD’s advice if I find myself on the receiving end of this kind of savagery?

These are just a few examples of the many comments that the Honolulu Police Department removed from their Facebook page. 

In 2014, both parties came to an agreement on the case and it was settled out of court.  The Honolulu Police Department changed their policy about removing comments.  One area in dispute was the agreed upon amount that the Honolulu Police Department would pay in attorney’s fees.  The court ordered them to pay $31,000.

Follow this link to read the entire complaint.

Another case in 2012 involved the Arena Police Department in Wisconsin.  The department not only removed comments they deemed offensive, they also labeled them “fighting words” and arrested the person who posted them.

Thomas Smith posted disparaging comments about the Arena Police Department on their Facebook page laced with profanity.  Eventually, he was arrested for disorderly conduct and unlawful use of computerized communications, tried and convicted.  However, his case was overturned on appeal in 2014. 

Mr. Smith then filed a civil rights suit against the Arena Police Department alleging a violation of his First Amendment right to free speech.  In September of 2015, the case was settled out of court for $35,000.

There is a more recent case worth taking a look at as well.  In October of 2014, Dmitri Karras sued San Diego County after his combative comments were removed from the San Diego County Sheriff’s Office Facebook page.  Karras alleged a First Amendment rights violation asserting the Facebook page was a public forum. 

A public outpouring of support for Mr. Karras flooded the San Diego Sheriff’s Office Facebook page with negative and sometimes profane comments, which ultimately resulted in the Facebook page being permanently deleted by the department. 

In February 2015, the case was settled.  While admitting no fault, San Diego County agreed to pay $23,000 in attorney’s fees and pay Mr. Karras $20.  Karras was quoted as saying the lawsuit was not about the money.  Instead, it was about the First Amendment and citizen’s right to free speech.

Since the lawsuit was settled, Mr. Karras has continued to make similar comments to what he made on the San Diego Sheriff’s Office Facebook page on the San Diego Police Department’s Facebook page as well as the Fullerton Police Department’s Facebook page. 

The Fullerton Police Department removed his comments and he is threatening to sue them while the San Diego Police Department threatened to remove his comments but backed off after Mr. Karras said he would sue them.

This is a sensitive topic and one that must be handled with the utmost care or your governmental entity may face a First Amendment lawsuit.  Although cases like the ones mentioned above have been settled prior to reaching an outcome with the court, I believe there are certain guidelines which, if followed, will mitigate the agency’s risk.

The government in general and law enforcement specifically is being attacked and there are many individuals like Mr. Karras, in the case against San Diego County, which are lashing out and seeking an incorrect response from the government so they can file a lawsuit.  As a result, it is important to protect your agency to the greatest extent possible.

As mentioned previously, the best way to protect your agency is to clearly establish that your Facebook page and any other platforms which allow comments, is a Limited Public Forum and outline your terms of use. 

I recently checked for the Terms of Use on dozens of law enforcement Facebook pages.  I was shocked to find that 90% of the ones I checked did not have any Terms of Use listed on the page.  For the departments that did have them, they were often hidden or difficult to find.  Your Terms of Use should be visible on the first row of tabs on your Facebook page.

Follow this link to see a demonstration of how to create a Facebook Custom Tab and upload your terms of use.  If you already know how to create a custom Facebook tab, skip the video and follow this link for a terms of use recommended example.  You should have your attorney review the document prior to using it. 

Another practice to help mitigate your risk in this area is to not remove posts that are critical of your agency.  You need to develop some thick skin if you are going to engage your community on social media and provide opportunities for feedback.

Remember, you cannot discriminate based on viewpoint.

Lastly, I recommend that you hide posts rather than delete them if the comments violate your terms of use.  You may want to capture the image before you hide it as well in case you need to easily retrieve it at some future point in time should Facebook lose the data.  In addition, many governmental entities are using Archive Social to capture all of their social media content.  It is easy to use and searchable.  You can retrieve all of your past content as well as any current content.

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