FLORIDA SHERIFFS & DEPUTY SHERIFFS

UNSOCIAL MEDIA AND THE FIRST AMENDMENT - PART III BY WAYNE EVANS, FSA GENERAL COUNSEL This is the final article in our series regarding social media and the First Amendment. As we have discussed previously, a sheriff may violate the First Amendment and incur liability by improperly deleting comments made by the public on social media accounts such as Facebook or by blocking access to the accounts. This final article will discuss two ways to limit or even avoid liability while maintaining control over a social media account: (1) adopting a social media policy posted on the sheriff’s social media account and moderating the responses consistent with the policy; and (2) completely disabling comments from the public. If comments are permitted, the case of Scheffler v. Chitwood is a good example of restrictions that may be reasonably placed upon the public when responding to a post by the sheriff’s office. In Chitwood, the Sheriff’s Office maintained a Facebook page which provided news and information about the Volusia County Sheriff’s Office as well as health and safety announcements. The public could like and comment in response to posts on the page. The Sheriff’s Office posted this social media policy on its page: Visitor posts [do not] necessarily reflect the views of the Volusia Sheriff’s Office. Posts and submissions on this site are subject to the public records provisions of Chapter 119, Florida Statutes. Civil discussion and debate [are] encouraged, but comments that are graphic, obscene, vulgar, sexually explicit, threatening, harassing, [or] discriminatory, advocate criminal behavior, include clearly inaccurate information, are unrelated to the intended topic of discussion, contain spam[,] or provide links to other third[-]party sites[] may be removed. The administrators of this page reserve the right, with or without notice, to block or restrict access and/or comments of any user who consistently violates these guidelines[.] Please report crime to [9-1-1] or the nonemergency line, 386-248-1777. The Sheriff’s Office also used a Facebook feature called Moderation Assist that automatically hid comments based on the criteria selected. The Sheriff’s Office chose to hide comments from accounts less than one week old, comments with links, comments with profanity, and comments by authors with no friends or followers. The criteria were chosen, except for profanity, to capture comments from accounts that were likely to use the page for spam, scams, and fraud. Critical comments were typically not hidden because they did not violate the policy and were not flagged by Moderation Assist. Nine comments by the plaintiff were hidden by Moderation Assist. Comments made by the plaintiff through a pseudonymous account were hidden because the account had no friends or followers, and some were additionally hidden because the account was new or the comment contained profanity. A comment made from an account in the plaintiff’s name was also hidden for profanity. The plaintiff filed suit in federal court alleging violations of his First Amendment rights. Because the Facebook page was a limited public forum, any restrictions could not discriminate on viewpoint and were required to be reasonable in light of the purpose of the forum. The federal district court concluded that the profanity and account-based restrictions were viewpoint neutral. The court additionally found that the restrictions were reasonable in light of the purpose of the page. Therefore, the Sheriff’s Office was not liable for violating the First Amendment. A few lessons can be learned from Chitwood that may be applied to personal and official social media accounts. If a

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