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| Do Elected Official Have to Continue to Absorb Online Ad-Hominem Attacks with no Recourse Given the Recent Rulings by the U.S. Supreme Court? It Doesn't look like legislative Officials do...... |
The U.S. Supreme Court has recently ruled on a couple of interesting cases on public officials' social media uses.
Being a public official that uses social media--I am paying close attention to this.
It appears as if the decision turns on whether the elected official has power to act on behalf of the government. In reading the decisions, It appears as if an elected executive branch official has a greater duty to maintain open dialogue on social media than does an individual member of an elected legislative body (like a school board member or a county commissioner)
This is very interesting because a common phonomemon I have witnessed is one or two posters, or one or two posters with multiple fake facebook accounts, can "hound" elected officials with whom they have personal beefs or animus---with a barrage of attacks and ad hominem's on the elected offical's social media account.
It really discourages dialoge--as most elected officials-------particularly at the legislative level locally----do not establish Facebook accounts tied to their roles because of this hostile, unfair environment. Because they can't stop a few loud and obnoxious voices from dominating the conversations and initiating unfair, biased, and ugly ad-hominem attacks.
But----according to these new rulings----it appears as if individual members of legislative bodies are not compelled to allow ALL posters on their sites. Yes, unruly posters can be blocked, and their disgusting attack-posts can be deleted. Wow.
This is an interesting turn.
Read these rulings, here and here.
Escambia School Board Attorney Ellen Odom analyzed the rulings and provided the below guidance to the Escambia County School Board Members--which appears to be applicable to Escambia Commissioners as well--because we are both legislative branch constitutional offices:
"The Court ruled “When a government
official posts about job-related topics on social media, it can be difficult to
tell whether the speech is official or private. We hold that such speech is
attributable to the State only if the official (1) possessed actual
authority to speak on the State’s behalf, and (2) purported to exercise that
authority when he spoke on social media.” In sum, if you place
personal political opinions on your personal pages and you have disclaimers
stating these are personal political opinions which do not reflect the views of
the School Board as a whole, I believe you will be able to disallow comments at
all on your personal pages or to block commenters, especially those who engage
in abusive language.
Regarding whether a state official
“possessed actual authority to speak on the State’s behalf,” the Court ruled “A
defendant like [the city manager] must have actual authority rooted in written
law or longstanding custom to speak for the State. That authority must extend
to speech of the sort that caused the alleged rights deprivation. If the
plaintiff cannot make this threshold showing of authority, he cannot establish
state action.”
There is no written law or rule which
requires individual school board members to speak on behalf of the Board
on social media accounts. In fact, the School Board has long
operated under the premise that the individual views of Board Members do
not constitute the views of the Board as a whole, and that no individual
Board member has the authority to speak on behalf of the Board as a whole
unless the statement is adopted as an official statement of the Board based
upon a vote taken by a majority of the Board. You have already approved NEOLA
bylaws which will clearly state this principle, once adopted.
As you know, the District has its
own social media accounts in which it posts information. Based upon the
tests established today and our long-standing practice (to be adopted as
policy), I do not believe that a Court would find that a School Board Member
possessed actual authority to speak on behalf of the School Board on social
media. If the School Board Member does not possess actual authority to
speak on behalf of the Board on Social Media, then the School Board Member does
not violate the law by blocking a commenter.
As for the second prong, whether a
government official purported to exercise State authority when he or she spoke
on Social Media, the Court gave examples of when a government official was
exercising State authority or personal authority:
“Consider a hypothetical
from the offline world. A school board president announces at a school board
meeting that the board has lifted pandemic-era restrictions on public schools.
The next evening, at a backyard barbecue with friends whose children attend
public schools, he shares that the board has lifted the pandemic-era
restrictions. The former is state action taken in his official capacity as
school board president; the latter is private action taken in his personal
capacity as a friend and neighbor. While the substance of the announcement is
the same, the context—an official meeting versus a private event—differs. He
invoked his official authority only when he acted as school board president.”
The court then further refined the
examples of state versus private action:
“The context of Freed’s
speech is hazier than that of the hypothetical school board president. Had
Freed’s account carried a label (e.g., ‘this is the personal page of James R.
Freed’) or a disclaimer (e.g., ‘the views expressed are strictly my own’), he
would be entitled to a heavy (though not irrebuttable) presumption that all of
the posts on his page were personal. Markers like these give speech the benefit
of clear context: Just as we can safely presume that speech at a backyard
barbeque is personal, we can safely presume that speech on a ‘personal’ page is
personal (absent significant evidence indicating that a post is official).
Conversely, context can make clear that a social-media account purports to
speak for the government—for instance, when an account belongs to a political
subdivision (e.g., a ‘City of Port Huron’ Facebook page) or is passed down to
whomever occupies a particular office (e.g., an ‘@PHuronCityMgr’ Instagram
account).
Based upon this, for those of you who
maintain social media accounts and occasionally post content related to School
Board business, I would recommend you place on your social media pages that it
is your personal page or account with the disclaimer “The views reflected on
the personal social media page are my views alone and those views do not
reflect the views of the School Board as a whole, or any employee of Escambia
County Public Schools.” As long as you are not announcing official
action in the first instance on social media on behalf of the Board (which none
of you individually have the authority to do under State law), then you will
not be found to have engaged in State action. Remember, the First
Amendment only applies to State action, not private action.
Please let me know if you have any
questions or wish to discuss further.
Ellen Odom"
