First Amendment Fundamentals When Using Social Media

Social media is an indispensable tool for government communication. It connects agencies with their residents in real time, promotes transparency, and fosters an engaged community. These impressive capabilities come with serious responsibilities, particularly when it comes to upholding the First Amendment rights of residents.

While local governments increasingly rely on social media to connect with their communities, many are unsure how to manage these platforms without overstepping constitutional boundaries. A major source of confusion is how exactly the First Amendment applies online. That uncertainty leads to hesitation, inconsistent moderation, and additional risks.

It is important to build a clear understanding of the First Amendment’s core principles and how they affect public sector social media usage.

First Amendment Basics

The First Amendment prohibits the government from making laws or taking action that violates people’s freedom of speech.

When a government agency creates a forum for speech, the First Amendment comes into play. A traditional public forum has the strongest speech protection, and speech cannot be regulated in any way. A limited public forum can be regulated with reasonable time, place, and manner restrictions.

Courts generally agree that government social media sites create a limited public forum. On social media, residents can voice their opinions using their freedom of speech rights, and the government hiding, deleting, or blocking comments based on viewpoint discrimination is likely unlawful.

“From what I’ve seen around the country, most government agencies are violating the First Amendment regularly. This gives critics of those agencies the ability to successfully sue for federal civil rights violations, and the staffers who manage the socials can be personally liable. Every agency should be trained by an attorney who knows this new area of law well and—following that training—should adopt revised policies that comply with the law.”

Mark Weaver, Attorney and Communications Advisor

Notable Supreme Court Rulings

Over the decades, several Supreme Court decisions have defined how public servants can post and engage with residents on social media.

Garcetti v. Ceballos (2006)

Richard Ceballos, a deputy district attorney in Los Angeles, wrote and distributed a memo recommending the dismissal of a criminal case. Afterwards, he alleged that he experienced retaliation and that his First Amendment rights were violated.

The Supreme Court found that Cabellos’ speech was not protected because he was acting in a professional capacity when he wrote the memo. The case draws an important line between private and job-related speech. When a government employee posts on social media as part of their work duties, that speech is considered government speech and the usual First Amendment protections may not apply.

Lindke v. Freed (2024)

James Freed, a Michigan city manager, maintained a Facebook account where he shared both personal updates and official information. He blocked a critic, Kevin Lindke, who sued, claiming a First Amendment violation. Freed argued that since he used his account in a private capacity, he was not subject to the First Amendment on social media.

As part of its ruling, the Supreme Court prescribed a two-part test to determine whether social media posts by a government official amount to state actions and are subject to the First Amendment:

1. Does the official have the authority to speak on behalf of the government?
2. Was the official speaking on behalf of the government in the relevant posts?

The case underscores the importance of drawing a clear distinction between government and personal accounts and reminds public servants to be cautious about mixing personal and professional communication on social media.

O’Connor-Ratcliff v. Garnier (2024)

Two California school board members used their personal Facebook and Twitter (now X) accounts to post about school-related issues. They blocked two parents, the Garniers, after the couple repeatedly posted critical comments. The Garniers sued, alleging a violation of their First Amendment rights. The Ninth Circuit ruled in the Garniers’ favor, finding that the officials’ personal pages functioned as public forums.

The Supreme Court remanded the case back to the lower court, alongside Lindke v. Freed. Judges were asked to reconsider the case in light of Lindke v. Freed’s new conclusions on the distinction between personal and private social media usage.

Drawing a Distinction Between Public and Private Social Media Usage

Here are some examples of cities that have adapted their policies in response to Supreme Court rulings and taken care to ensure they draw a clear distinction between personal and official social media content.

New York, NY:

“. . . Personnel who wish to use social media in a personal capacity must indicate they are only representing themselves, and cannot do so on City time and using City resources, including personnel.”

Ridgewood, NJ:

“Do not make comments as a Village of Ridgewood employee, volunteer or representative that may be deemed to have come from the Village. In this regard you are required to ensure that comments are deemed to be personal opinions and not opinions of the village of Ridgewood . . . Communications on individual personal social media pages in which matters related to the Village of Ridgewood are discussed, individuals covered by this policy must add a disclaimer on the front page stating that the posting does not express the views of the Village of Ridgewood and that they are expressing their own personal views.”

Is Social Media Content Protected by the First Amendment?

In short, yes. The posts and comments your citizens make are—in nearly all cases— protected by the First Amendment. Furthermore, if a resident believes you’ve violated their First Amendment Rights, they can sue.

What About Hate Speech?

As Weaver explained in a webinar on First Amendment rights, “The speech that bothers us most typically has the greatest First Amendment protections.”

What Isn’t Protected Under the First Amendment

Though the First Amendment protects most of what gets posted online—even hate speech, profanity, and misinformation—users can’t just post anything they want.

Account administrators are generally free to mute or delete the following types of content.

1. Obscenity: While difficult to define, obscenity is typically taken to include pornographic imagery and anything else that might be harmful to minors.
2. Defamation: For speech to be considered defamatory, it must be a false assertion of a fact that causes damage to a person or group. An opinion cannot be considered defamatory.
3. Threats: The First Amendment does not protect any communicated intent to inflict harm. Credible threats may be investigated as crimes.
4. Spam: To be considered spam, Weaver explains, content “has to be something that has nothing to do with your topic or nothing to do with the subject matter of the post.” He encourages municipalities to apply this definition sparingly.
5. Illegal activities: “If someone is using your page to commit a crime, attempt to commit a crime, or encourages others to commit a crime,” Weaver says, “it can be deleted or hidden.” You may also consider alerting the appropriate law enforcement authorities.
6. Malware: There is no First Amendment right to post malicious URLs and interfere with the workings of a computer or a network.
7. Illegal discrimination: “If someone comments in a way that obviously promotes or encourages illegal discrimination by your agency,” says Weaver, “it can be taken down.” There is no protection for posts that, for example, discourage your agency from hiring someone of a specific race.
8. Copyrighted material: “Nobody has the right,” says Weaver, “to post something stolen from the creator of that work.”

Developing a Social Media Policy

“Having a policy that outlines how your agency will deal with troublesome comments on your social pages is a good idea, but that policy must comply with the First Amendment and all relevant case law. Having such a constitutional policy in place can inform people who interact with your content what they can expect.”

Mark Weaver

Introduce a Social Media Policy with this Customizable Template

Download our template to guide and protect your agency, draw a clear distinction between personal and professional social media use, and more.

Best Practices for Developing Social Media Policies that Protect First Amendment Rights

1. Define the purpose of your accounts: Clearly state that your government’s social media accounts are intended as limited public forums for sharing information and facilitating discussion of municipality business.
2. Post your moderation policies publicly: Though the First Amendment protects many types of speech, it’s important to publicly post rules about unacceptable content and moderation policies. This transparency protects you from potential legal action and reinforces your commitment to both promoting civility and protecting First Amendment rights.
3. Document all moderation actions: Maintain detailed records of any deleted comments or banned users, including the specific policy violations. This will help you defend against potential legal challenges and demonstrate that enforcement is based on policy, not on personal viewpoints.
4. Train your staff consistently: Ensure that account managers understand the First Amendment and follow your policies consistently.
5. Review and update policies regularly: The law evolves quickly and so do social media platforms. Regularly revisit your policies to ensure they reflect current legal standards and the community’s needs.

Legal Disclaimer

The information in this article is provided for general informational and educational purposes. None of this content is intended as legal advice.

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