My Analysis on SCOTUS 1st Amendment and Government Social Media Opinions
Some of asked for my analysis on the #SCOTUS cases (released Friday) on First Amendment and government social media, since I speak on this topic as much or more than any lawyer in the country. Here we go. Please share this with fellow government communicators.
On Friday, the U.S. Supreme Court handed down two opinions on the only cases it’s ever heard on how the First Amendment governs government social media pages. We’ve had several Circuit Court opinions but nothing from SCOTUS until now.
Last year, I studied all the briefs in both of the (somewhat related) cases, representing a split between how the Ninth Circuit Court (west coast) and Sixth Circuit Court (midwest) addressed the issue. With the SCOTUS decision, those respective tests are now moot.
I was fortunate enough to obtain Justice Alito’s chamber’s seat in the courtroom for the dual oral arguments and, after watching them, I posted a video update from outside the Supreme Court building immediately following.
In that post oral argument analysis, I suggested that all the material I’ve been teaching for the last 5+ years on this topic is still in force — government social media pages are limited public forums that can’t discriminate on viewpoint. Many state and local governments routinely delete comments that have First Amendment protection and they are at risk of a federal civil rights lawsuit.
Months after those oral arguments, now that I’ve read the two SCOTUS opinions issued Friday, my initial take is borne out — if you’ve been in one of my 100+ trainings on this topic, your slides, handouts, and notes are still correct. And, the sample government social media comment policy template I wrote for all to use is still a valid and best practice policy. You can download a Word version of that policy (among other things) on this resources page.
But, thanks to these SCOTUS opinions, we do have a new test you should know and it’s somewhat complex. The good news (for clarity sake) is that the new standard mostly affects Facebook pages or profiles that have a government official’s name as their title. Think a page called “City Manager George Washington” or a page called “County Commissioner Benjamin Franklin.” But even a page that doesn’t have a title in it (Think “Alexander Hamilton’s Personal Page” wherein Mayor Hamilton announces City updates therein) might have some posts (not the family vacation photos) covered by the First Amendment. To borrow a term from the Facebook robots, “it’s complicated.”
So, if you’re only interested in the SCOTUS take on your “Official Anytown Page” (with no person’s name in the title) then you can move along. The opinions we got Friday don’t affect the rules and law as I’ve taught them and as the relevant Circuit Courts have previously ruled. Since SCOTUS didn’t disturb or even imply a concern with those previous Circuit Court cases, it’s likely that all of America is now covered by the rulings of courts like the 2nd, 4th, 8th, and 11th Circuits that had previously looked at this issue.
If you’re looking for an easy way to understand the new test that will help you determine when/whether your elected official’s (or city/county manager) page (or even individual posts on a personal or political page) must comply with all First Amendment cases, I’m currently working on a simple flowchart or maybe even an online widget that will make sense of it all.
I will roll out that tool shortly, when I speak at:
-GSMCON in Palm Springs on April 17
-Police Foundation (open to all government agencies) in Toms River NJ on April 5
and in future trainings and likely will make it available via my X feed.
Until that guidance tool is available, you can read the primary SCOTUS opinion here.
NOTE: I am a lawyer but I’m not your lawyer. Always work with your lawyer but don’t be surprised if your lawyer (otherwise smart and helpful) hasn’t read many of the cases in this area. Most government attorneys are forced to be generalists in their work and none of this was taught when your lawyer was in law school — it’s all that new. Be sure your lawyer reads all the pertinent caselaw before opining — not just these two SCOTUS cases.
Good luck!
