Fire law: removal of posts from social media websites

Social media has brought new challenges to firefighters. Likewise, he challenged the legal system, demanding that decades-old legal principles be applied to this new form of digital communication.

Among the issues resurfacing is whether a fire department can remove offensive and derogatory comments posted by members of the public on its website(s). The question goes to the heart of a complicated dilemma that involves the First Amendment on the one hand and public records laws on the other.

The First Amendment

Under the First Amendment, the government cannot censor members of the public by choosing what speech is permitted and what is prohibited. Government actions that limit the ability of the public to freely express their ideas based on the content of this speech violate the First Amendment.

When the First Amendment was enacted in 1791, the intent was to ensure that people have a meaningful opportunity to publicly express their ideas, even if those ideas are unpopular, with others. This right is not limited to talking inside one’s own home or whispering in private places. The right to freedom of expression would exist everywhere, including in the town square. Thus, the “town square” became the metaphorical place where people should be able to express their thoughts without fear of government reprisals.

What is the link with social networks?

In the digital age, the Internet has become the equivalent of the public square. Just as the government cannot restrict free speech in the public square, the government cannot restrict free speech in cyberspace.

Censorship

Anytime the government restricts some speech but not others, it runs the risk of violating the First Amendment. For example, if the government allows pro-war rallies in the town square but prohibits anti-war rallies (or vice versa), it would engage in censorship. However, the government may impose reasonable time, place, and manner restrictions on freedom of expression, provided that such restrictions are content-neutral. As such, the government could designate separate dates and times for each group to hold their rally and could prohibit certain activities during the rally, such as lighting bonfires.

These basic principles also apply to a government-owned website. The government cannot restrict certain views by removing posts while allowing other views to remain visible. However, like managing speech in the public square, the government can set reasonable rules for postings, as long as the rules are content-neutral.

Drawing the line between restrictions that are reasonable and those that are not inevitably becomes contentious. Government agencies that have a web presence, such as a Facebook page, should have a clear policy on the types of posts that will not be tolerated. These policies (often referred to as moderation policies) generally prohibit the posting of pornographic content; the use of profanity or threats; encouraging illegal activities or promoting violence; the use of racial/ethnic slurs; and advertising or sending spam.

Much thought and research should go into a fire department’s online moderation policy. Legal counsel should be involved. The policy should be posted on the agency’s website if possible or made readily available to anyone who requests a copy. It should be followed consistently by those responsible for the management of the website. If/when a dispute arises, legal counsel should be consulted immediately. The policy may need to be evaluated and, perhaps, updated if the challenge is upheld.

Managing the moderation policy on a day-to-day basis should be done consistently, but that’s easier said than done. Staying objective when non-free content is posed can be difficult. Its instinct may be to find excuses in the moderation policy to justify deleting posts that are critical while ignoring posts that violate the policy but are complementary. These instincts must be resisted and the poster’s free speech rights must be respected.

Public records laws

Most states define a public record as any document created or received by an employee or government agency in the course of business. When enacted in the 1970s, public records consisted primarily of paper, photographs, and information on tape. Today, public records exist in a variety of formats, including digital information.

Posts and comments on government-run social media sites generally meet the definition of a public record. Whether posted by employees or by the public, information must be archived in accordance with public records laws and must be retained for the duration of the applicable record retention period. The obvious problem is that, unlike a paper document, a website open for comments requires continuous archiving. The process of archiving messages can be difficult given the fluid nature of online activities. Nonetheless, public records laws make it clear that if a government agency plans to have a web presence, it must comply with aspects of public records, which inevitably requires archiving.

As such, it is important that departments ensure that all posts, even those removed for violating the website’s moderation policy, are archived as part of the department’s efforts to comply with public record requirements. .

Treated as public document

Departments that have a social media presence must have a First Amendment-compliant moderation policy. Anything posted on the site, whether by firefighters or the public, should be treated as a public document. This includes posts that violate a service’s moderation policy. Posts that violate the moderation policy may be deleted but should always be archived for public record purposes.