Anderson City Council passed a social media policy last week. A First Amendment expert has concerns

The Anderson City Council passed a social media policy last week that outlines guidelines for public officials and city staff when it comes to social media use. 

But a First Amendment expert has concerns about the policy’s constitutionality. 

City staff brought the drafted policy to the council on March 3, where it passed 4-1, with council member Darin Hale casting the dissenting vote. The policy was created in the wake of controversial posts made by Hale on his personal Facebook page, where he accused a local flight school of participating in Chinese espionage without proof. After the accusations, an official with the school reached out to the city asking leaders to adopt a policy related to statements by public officials. 

Shasta Scout’s reporting about the social media policy last week highlighted the flight school’s response to the policy and how Hale’s comments have allegedly impacted the school. But it also brings up First Amendment concerns.

The newly-approved policy states that if a council member posts about city-related matters on their accounts, they have to clarify whether they’re speaking in their private or official capacity. It also prohibits public officials from using their personal social media accounts to speak on behalf of the city unless they’re authorized to do so.

The document was met with opposition from Hale at last week’s meeting, where he claimed that the provisions concerning public officials’ ability to speak on behalf of the city, and the requirement to state which capacity they’re speaking in when posting about city-related matters, are unconstitutional. 

“You cannot stop someone from speaking, and you cannot force them to say something, period,” Hale said. He added that he will be refusing to clarify whether he’s speaking in a personal or official capacity on every one of his personal social media page posts discussing city matters. 

Jake Karr, a staff attorney at the Knight First Amendment Institute at Columbia University, said the provisions Hale is concerned about do, in fact, pose concerns for city officials’ First Amendment rights. 

“As much as the city has latitude to impose a policy on the use of city social media accounts by city officials and elected members of the city council,” Karr said, “they have much less latitude to try to impose restrictions on those same city officials’ use of their personal accounts.” 

But First Amendment law is not black and white, Karr said, and deciding whether policies like these are unconstitutional or not can be complicated.

Anderson City Manager Joey Forseth-Deshais was unable to be reached for comment for this story.

What does Anderson’s social media policy say, and is it constitutional? 

Anderson’s new social media policy comes after IASCO Flight Training Operations Manager Miranda Vorhis requested the city council to adopt such a policy in response to Hale’s unproven claims against the school and its students. Vorhis told Shasta Scout in an interview for a previous story that she hoped such a policy would curtail claims from public officials like Hale’s from being made in an official capacity.

“I’m pleased that the council voted in favor of adopting that policy,” she told Shasta Scout after the policy was passed. “I’m concerned that they’re going to have issues enforcing it, and I’m hoping that they have some kind of plan in place to be able to do that because, as Mr. Hale said on multiple occasions, it’s a policy, not a law, so he already stated he doesn’t intend to follow it.” 

The seven-page policy document approved by the council explains that the purpose of the policy is to “ensure that the City’s social media channels best serve the needs of the community and meet legal standards,” as well as establish “oversight, administration, and management guidelines for departmental use of social media to further the goals of the City.” It applies to elected and appointed officials and other city staff. 

The policy includes guidelines for social media accounts that officially represent the city, as well as the personal social media use of city officials. During last week’s meeting, Hale mainly took issue with a provision under a section of the policy that discusses city officials’ personal social media use, which is labeled, “Private versus Representative Capacity.” 

“City Officials shall not use their personal Social Media accounts to speak on behalf of the City, unless authorized by the legislative body to do so,” the provision reads. “In communicating City related matters on their Social Media account, City Officials shall clarify when they are speaking in their private capacity and when they are speaking on behalf of the City.”

Hale said instead of requiring these actions by public officials, the city should just recommend them.

First Amendment legal expert Karr was provided with the social media policy before the meeting. In an interview with Shasta Scout prior to the council’s discussion, he said when he first read the social media policy, this section gave him pause. 

Karr explained that he thinks the city has good intentions in making sure the public knows when an official is speaking in their official or personal capacity, but “it gets a little bit tricky when the city is trying to sort of mandate what officials or employees can and can’t say on their personal accounts.” 

He also said that the phrase “City related matters” used in the policy is both broad and vague, making it difficult for officials to know when a personal post of theirs could trigger the disclaimer requirement. 

However, he wrote by email after the meeting, he understands the desire for the policy because “the City has an interest in preventing public confusion over whether officials are speaking on behalf of the government or only in their personal capacities.” 

But, he said, “if this policy is interpreted to require officials to provide a disclaimer on every single post ‘related’ to the City on their personal social media accounts, that would present a closer constitutional question.” 

A compromise the city could make, Karr said, is to have public officials clearly designate their personal accounts as personal and require a disclaimer only when they’re posting in their official capacities on behalf of the city. 

But Karr wasn’t just concerned with this specific section of the policy. He said another setting of the policy related to content standards contains wording that’s too vague. That wording prohibits certain city social media site content, as well as some public comment content. According to the policy, content and comments that can be removed include: 

• Profane or threatening language or content;
• Sexual content or links to sexual content;
• Content that promotes, fosters, or perpetuates discrimination on the basis of race, creed, color, ancestry, age, religion, gender or gender expression, marital status, national origin, medical condition, military or veteran status, physical or mental disability, or sexual orientation;
• Solicitations or commerce, including but not limited to, advertising of any nongovernment related event, or business or product for sale; e. Conduct or encouragement of illegal activity;
• Information that may compromise the safety or security of the public or public systems;
• Content that violates a legal ownership interest of any other party;
• Potentially libelous or defamatory comments; and
• Private or personal information published without consent.

Karr said some of these content-based restrictions, including “Information that may compromise the safety or security of the public or public systems” and “Potentially libelous or defamatory comments,” are too broad and not well defined, opening up the policy to constitutional questions because of how those terms could be interpreted by different parties. 

Overall, Karr said he thinks it’s a good idea for governmental bodies — like city councils — to have clear rules governing social media use, both for public officials and members of the public. He also said that it’s best practice for officials to be clear when they’re speaking in their personal or official capacity, which often means having distinct, separate accounts for government and personal business. 

“I think that the more content, generally speaking, that the government or city would allow on their social media platforms, the better,” he said. “But it’s really important to just be transparent about what the policies are and make sure that members of the public understand — and officials and employees themselves understand — what the rules of the road are.”

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