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Should Municipalities Allow Public Commenting on Their Facebook Pages?

Apr 28, 2015 | Written by: Tara A. St. Angelo, Esq. |

With the growth of social media, municipalities have turned to sites like Facebook and Twitter in order to effectively convey information.  Municipalities are also turning to social media to connect with their residents.  Local governments already connect with their residents through public hearings and meetings.  However, what percentage of residents are actually going to these meetings?  These meetings may exclude residents that simply do not have the time to attend.  Facebook offers an advantage to the traditional public meeting by allowing residents to post comments and voice their opinions on issues from the comfort of their own homes or on the go from their mobile devices.  However, allowing the public to freely post comments on a municipal Facebook page may open up a Pandora’s box.  The largest concern is how to moderate comments without violating the public’s right to free speech.  Although no New Jersey public entity has been sued for violating the public’s right to free speech on social media, it seems almost a guaranty that such a case will materialize in the near future.  Most recently, the Vineland Police Department was criticized for deleting public comments regarding an in-custody death.  After an OPRA request was submitted for records of the Department’s Facebook page, the comments were made visible to the public.

When a municipality establishes a Facebook page, one of the first decisions to make should be whether to allow public commenting and how much.  In essence the municipality must decide whether its Facebook page is a “Traditional public forum” or a “Government Communication.”  If a municipality decides to not allow any public comments on its Facebook page, it is designating it as a “government communication,” much like the municipal website, and the discussion of the issue of public commenting ends there. See Page v. Lexington County School District One, 531 F.3d 275 (4th Cir. 2008) (designating a school district’s website as “government speech” and allowing the school district to deny citizens the right to publish their own content on the website).  Facebook does allow the page administrator to completely disable commenting. 

If a municipality decides it would like to allow commenting on its Facebook page, the next consideration is how much commenting it wants to allow.  If the municipality only wants to open up public comments on specific posts or for a specific period of time, it is creating a “designated” or “limited” public forum.  In a “designated public forum” situation, the municipality would open up commenting on specific posts and limited to certain topics.  See Good News Club v. Milford Central School, 533 U.S. 98 (2001) (allowing a university to restrict use of its meeting rooms to events pertaining to education and community welfare as long as the restrictions were content-neutral).  In a “limited public form” situation, the municipality would open up comments for a specific period of time on any topic.  If a municipality allows public commenting on all topics and at all times, the municipality has created a “traditional public forum” akin to the courthouse steps.

If a municipality allows public commenting in any form, the municipality must decide how to moderate the comments and determine when to delete or hide comments.  In a limited forum, the deletion of a comment “must not discriminate against speech based on viewpoint, and must be reasonable in light of the forum’s purpose.”  Good News Club v. Milford Central School, 533 U.S. 98 (2001).  In a designated forum or traditional forum, there must be a narrowly drawn “compelling state interest” to restrict free speech. Perry Educ. Ass’n v. Perry Educators’ Ass’n, 460 U.S. 37 (1983).  Therefore, the municipality must only delete or hide comments that violate such “compelling interests.”  Examples include the protection of the public welfare, threats, offensive, racist or derogatory words.  Gitlow v. New York, 268 U.S. 652 (1925); Virginia v. Black, 538 U.S. 343 (2003); Denver Area Educ. Telecommunications Consortium, Inc. v. F.C.C., 518 U.S. 727 (1996)).

Therefore, a municipality should set forth a clear policy regarding public comments and appoint a moderator that will exhibit neutrality and a strict adherence to such policy.

Tara St. Angelo's primary areas of concentration are municipal and land use law. Contact Ms. St. Angelo at Gebhardt & Kiefer, PC at 908-735-5161 or via email.