Troubleshooting Potential Legal Issues
in Local Government Use of Social Media
NEW JERSEY LEAGUE OF MUNICIPALITIES
2014 ANNUAL CONFERENCE
NOVEMBER 19, 2014
TARA ANN ST. ANGELO, ESQ.
GEBHARDT & KIEFER, P.C..
[email protected]
Freedom of Speech
"CONGRESS SHALL MAKE NO LAW
RESPECTING AN ESTABLISHMENT OF
RELIGION, OR PROHIBITING THE FREE
EXERCISE THEREOF; OR ABRIDGING THE
FREEDOM OF SPEECH, OR OF THE PRESS; OR
THE RIGHT OF THE PEOPLE PEACEABLY TO
ASSEMBLE, AND TO PETITION THE
GOVERNMENT FOR A REDRESS OF
GRIEVANCES."
Public Commenting
• “Public Forum” or “Government Communication”?
• Traditional public forum (Ex: Town hall steps or public park)
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Designated or limited public forum (Ex: State university
meeting room; city council meeting)
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Non-public forum (Ex: airport terminal)
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Good News Club v. Milford Central School, 533 U.S. 98
Perry Educ. Ass’n v. Perry Educators’ Ass’n, 460 U.S. 37 (1983)
Government Communication (Ex. Municipal website)
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Page v. Lexington County School District One, 531 F.3d 275 (4th
Cir. 2008)
Public Commenting
• 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))
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Protection of public welfare (Gitlow v. New York, 268 U.S. 652 (1925))
“Fighting words” or threats (Virginia v. Black, 538 U.S. 343 (2003))
Offensive, racist, derogatory (Denver Area Educ. Telecommunications
Consortium, Inc. v. F.C.C., 518 U.S. 727 (1996))
• Removal or “hiding” of comments?
• Hawaii Defense Foundation v. City of Honolulu (2014) – settled!
• There should be a “policy” to provide for orderly public participation.
• There should be a neutral moderator who can maintain some level of
control.
Posts by Non-Municipal Groups
 Can restrict to those organizations that participate in
the forum’s official business.
Putnam Pit, Inc. v. City of Cookeville, Tennessee, 221F. 834(2000)
 Similar to “banner” ordinances with an application
or request process. (Need to set up a policy with a
group to review requests / applications)
Heartbeat of Adawa Cty., Inc. v. City of Port Clinton, 207 F.2d 699 (2002)
 “Reasonable and viewpoint neutral” restrictions.
Heartbeat of Adawa Cty., Inc. v. City of Port Clinton, 207 F.2d 699 (2002)
OPRA
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IS IT A RECORD?
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HOW TO STORE OR MAINTAIN?
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“Government record” or “record” means any paper, written or printed book, document, drawing, map, plan, photograph,
microfilm, data processed or image processed document, information stored or maintained electronically or by soundrecording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his
or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof,
including subordinate boards thereof, or that has been received in the course of his or its official business by any such
officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate
boards thereof. The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.
N.J.S.A. 47:1A-1.1
Take a “screen shot” or picture of the Facebook page or Twitter feed everyday? (time consuming)
Website and media journaling company, like Smarsh.com? (expensive)
SUGGESTION: AVOID CREATING NEW MATERIAL ON SOCIAL NETWORKING SITES
AND INSTEAD USE EXISTING MATERIAL THAT IS ALREADY MAINTAINED FOR
LOCAL RECORDS LAW COMPLIANCE.
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But what about comments, tweets, etc. from the public?
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ALERT THE PUBLIC OF PRIVACY CONCERNS
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REMEMBER, DELETED COMMENTS / POSTS ARE ALSO SUBJECT TO OPRA
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SUGGESTION: Don’t ever delete posts or comments on Facebook, only “hide” them.
FOIA
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REQUIREMENT TO MAKE “RECORDS” AVAILABLE
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DEFINITION OF A “RECORD”
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Each entity subject to the provisions of this article, within five business days of the receipt of
a written request for a record reasonably described, shall … (Public Officers Law §89(3)(a)).
"Record" means any information kept, held, filed, produced or reproduced by, with or for an
agency or the state legislature, in any physical form whatsoever including, but not limited to
… computer tapes or discs….. (Public Officers Law §86(4))
OBLIGATION TO PRODUCE
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Nothing in this article shall be construed to require any entity to prepare any record not
possessed or maintained by such entity…. When an agency has the ability to retrieve or
extract a record or data maintained in a computer storage system with reasonable effort, it
shall be required to do so. (Public Officers Law §89(3)(a)).
OPMA
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DEFINITION OF MEETING
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DEFINITION OF PUBLIC BUSINESS
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“Meeting” means and includes any gathering whether corporeal or by means of communication
equipment, which is attended by, or open to, all of the members of a public body, held with the
intent, on the part of the members of the body present, to discuss or act as a unit upon the specific
public business of that body. Meeting does not mean or include any such gathering (1) attended by
less than an effective majority of the members of a public body, or (2) attended by or open to all the
members of three or more similar public bodies at a convention or similar gathering. N.J.S.A. 10:48 (emphasis added).
“Public business” means and includes all matters which relate in any way, directly or indirectly, to
the performance of the public body's functions or the conduct of its business.” Id.
“CHANCE ENCOUNTERS OF MEMBERS OF PUBLIC BODIES ARE NEITHER
COVERED BY THE PROVISIONS OF THIS ACT, NOR ARE THEY INTENDED TO
BE SO COVERED.” N.J.S.A. 10:4-7; WITT V. GLOUCESTER COUNTY BOARD
OF CHOSEN FREEHOLDERS, 94 N.J. 422 (1983)
Public Officials Commenting and Tweeting
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The law has not caught up with technology yet.
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If a Quorum of a governing body comments on a post or responds to a tweet, does
this violate OPMA?
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The Florida Attorney General issued an opinion in April 2009 that a government social media site
would likely implicate the state open meetings requirements, among other sunshine laws.
(http://www.myfloridalegal.com/ago.nsf/Opinions/25F14F90483F3901852575A2004E46CB)
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Temporal problem?
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SUGGESTION:
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restrict elected officials from commenting on the social networking sites when the topics are
addressed in a manner that can be considered discussion of public business.
Elected officials’ use should be limited to first-run comments and announcements, and replies
specifically in response to the citizen’s comments.
Special care should be taken to avoid cross-comments between elected officials and avoid any
official action akin on a matter (or even the appearance of any official action).
For quasi-judicial matters, elected officials should respond to inquiries on social media sites the
same as they would to a telephone call or email message – inform the person contacting them that
the matter cannot be discussed outside of the public hearing.
Employee Use
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“NO LOCAL GOVERNMENT OFFICER OR EMPLOYEE SHALL
USE, OR ALLOW TO BE USED, HIS PUBLIC OFFICE OR
EMPLOYMENT, OR ANY INFORMATION, NOT GENERALLY
AVAILABLE TO THE MEMBERS OF THE PUBLIC, WHICH HE
RECEIVES OR ACQUIRES IN THE COURSE OF AND BY
REASON OF HIS OFFICE OR EMPLOYMENT, FOR THE
PURPOSE OF SECURING FINANCIAL GAIN FOR HIMSELF,
ANY MEMBER OF HIS IMMEDIATE FAMILY, OR ANY
BUSINESS ORGANIZATION WITH WHICH HE IS ASSOCIATED”
N.J.S.A. 40A:9-22.5(G)
Information About Minors
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RULE OF THUMB: DON’T POST ANY PHOTOS UNLESS YOU
HAVE A SIGNED WAIVER FROM THE MINOR’S PARENTS.
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CHILDREN'S ONLINE PRIVACY PROTECTION ACT OF 1998
(15 U.S.C. §§ 6501–650)
Copyright Laws
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POTENTIAL COPYRIGHT LIABILITY
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should be produced by the municipality or individual who posts the media.
If copyrighted materials are used, the poster should make sure it obtains and maintains physical records of the copyright
licenses.
If links are posted, the linked websites should open in external pages, which are separate and distinct from the municipality’s
page.
Disclaimer addressing the content of sites that are linked from the organization’s site, specifically disclaiming liability for any
illegal or infringing content:
By clicking this link you will leave the official Facebook page of Municipality. Municipality is not responsible for the content, nor
endorses or supports any advertising that may be contained on this site. Municipality has no control over the
content nor the ownership of the domain name and we do not endorse, control, or take responsibility for this organization, its
views, or the accuracy of the information contained on the link you have chosen.
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Policies addressing copyright issues for employees and those responsible for posting information on the social networking site.
PROTECT YOUR OWN ORIGINAL WORK-PRODUCT
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All users of social media sites should also be aware that some social networking sites (such as Facebook) have terms of use in
place that state that by posting intellectual property on Facebook an individual grants Facebook a “non-exclusive, transferable,
sub-licensable, royalty-free, worldwide license to use any IP content” that is posted.
Americans with Disabilities Act
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DOJ HAS TAKEN THE POSITION THAT ADA ACCESSIBILITY
REQUIREMENTS APPLY TO WEB SITES, TELEPHONE ACCESS
SYSTEMS, AND OTHER “COMMUNICATION MODALITIES OF
PUBLIC ACCOMMODATIONS.”
(HTTP://WWW.ADA.GOV/WEBSITES2_SCRN.PDF)
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“POORLY DESIGNED WEBSITES CAN CREATE UNNECESSARY
BARRIERS FOR PEOPLE WITH DISABILITIES.”
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Easily understood site design and lay-out
Easy enlargement
Method to request the site information directly from the municipality
Social Media Policies
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DON’T LET THIS BE YOUR TOWN!
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California Town Abandons Facebook Page Amid Legal Concerns
(http://www.abajournal.com/news/article/california_town_abandons_face
book_page_amid_legal_concerns)
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HAVE THEM, DISPLAY THEM, FOLLOW THEM
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METUCHEN IS A GOOD EXAMPLE
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http://www.metuchennj.org/notices/Social_Media_policy.pdf
Social Media Policies – Must Haves
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Make it clear to users that by posting or commenting they agree to the
terms and conditions
Make it clear to users that their comments and posts are subject to OPRA,
FOIA and the Right-to-Know Law
Designate certain forums as non-public or limited, etc.
Put in place content neutral restrictions on comments that are narrowly
tailored to protect government interest
State that the municipality reserves the right to delete comments or posts
that violate the social media policy
State that all content posted on the site must adhere to applicable copyright
laws and that the municipality reserves the right to delete comments and
posts that violate such and will not indemnify the poster.
Designate a moderator and someone to review requests / applications from
non-municipal groups.
State that the site is not to be used for official communication (i.e. OPRA
requests, police reports, etc.)
State that no social media site of municipality established without approval
and shall clearly state that is maintained by municipality