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As Local Governments Dive into Social Media, Experts Say Proceed with Caution

As Local Governments Dive into Social Media, Experts Say Proceed with Caution

By Edward McEneely

When a blizzard descended on Newark, N.J., citizens reached out to Mayor Cory Booker on the social media site Twitter for help. As he shoveled snow and delivered diapers, the mayor also let his followers know there would be no garbage pickup the next day. As a rare and severe ice storm downed power lines around Kentucky, the mayor of Madisonville reached out to his community on Facebook. He posted status updates to provide instant news on progress to restore electricity and answered questions publicly on his page as they flooded in. To lure people back to the state, a county in Kansas used LinkedIn and Facebook, promoting new businesses and economic initiatives that former residents might find appealing.

Increasingly, state and local governments engage in social media on a much larger scale to reach their citizens.

“My cents love it because [social media] is cheap, essentially free and can provide quick information in a very inexpensive manner,” said Julie Tappendorf, the presenter of “Social Media and Local Governments” and co-author of the new book Social Media and Local Governments: Navigating the New Public Square. “It’s also great because instead of requiring citizens and community members to come to the website for information, it comes to their door. They’re getting information from the communities where they don’t have to affirmatively go out.”

As a partner at the law firm Ancel Glick, Tappendorf advises local governments on a variety of legal issues. She says it is no surprise that local governments would find value in reaching constituents in this manner, but they must be aware of how to comply with legal requirements when engaging through social media outlets. While they can be time-saving and cost-effective communication tools, “we need to advise our clients to be careful and cautious,” Tappendorf said.

Legal issues include public forum qualifications from open meeting laws, records retention for the Freedom of Information Act (FOIA), freedom of speech through the First Amendment, privacy issues, copyright concerns and the potential for discrimination.

Based on the interactive nature of popular social media sites, Tappendorf warned that a Facebook page could trigger a public forum under that state’s open meeting laws, and all communication would be required to be accessible to all. That requirement means no one-on-one messages or comments that only some users can see. Also known as “sunshine laws,” the requirements vary by state, so Tappendorf recommends using existing statutes about public access with electronic communication as a guide.

Records retention requirements from FOIA are another concern because the local government entity does not have complete control on content it posts on social media sites. Content can be deleted or manipulated by the social media channel. But Tappendorf says by posting content on their own website and linking to that Web destination on social media, government entities can comply with FOIA requests efficiently.

“Don’t create original content on social media sites,” Tappendorf recommends.  “Create on some medium that the city has complete control over and then reiterate on your social media channels.”

While a government website is a one-way communication and is classified as government speech, it gets thornier when public services join sites that allow — and often encourage — comments. The First Amendment can play a role in whether a city can restrict speech through comments that it may not like. While Tappendorf says that Facebook previously let pages disable the comments function, it is no longer an available option. “Facebook has taken the position that this type of speech on Facebook should be protected by the First Amendment,” Tappendorf explained. “They like the discourse; they want people to comment.”

She notes that governments can stay within the boundaries of the First Amendment by including a disclaimer explicitly stating that obscene and defamatory speech will be removed, similar to the type of speech that can legally be stopped at a public meeting.  But opposing views that are critical should not be censored.

Because not all citizens have Internet access, or may have a disability that prevents them from using social media, a majority of participation on these outlets could be depriving a certain population.  Tappendorf encouraged lawyers to advise their government clients that, while cost-effective and easy, social media should be considered a supplement to existing outreach, rather than a substitute.

In regards to copyright concerns, Tappendorf again recommends that governments be cautious about usage and be cognizant of necessary permissions. “There is a fair use doctrine that protects a lot of what goes on the Internet, but it’s not limitless,” Tappendorf said.

Because there is little existing law regarding social media and local government compliance, Tappendorf suggested following the standards already set for email and text messages. However, she predicts that “there is no question we will see more litigation about this.”

The CLE was sponsored by the Section of State and Local Government LawGovernment and Public Sector Lawyers Division and the Center for Professional Development.

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