FLORIDA SHERIFFS & DEPUTY SHERIFFS

sheriff permits public comments, the sheriff should take the following actions: (1) post a social media policy on the social media site that informs the public of restrictions to comments that are posted on the social media page; (2) moderate the responses according to the purpose of the policy; and (3) if an automatic tool like Moderation Assist is utilized, monitor any hidden or removed comments to ensure that they are consistent with the policy and do not constitute viewpoint discrimination. A policy based on the lessons from Chitwood should include the following: 1. An express statement of the purpose of the page. 2. An express statement that the purpose of the page does not include the ability of the public to use the page to engage in spam, scams, or fraud. 3. An express statement that visitor posts do not represent the views of the sheriff’s office (or the sheriff if it is his or her personal account). 4. A public records disclaimer. 5. A description of the types of comments that may be removed for violating the policy, including statements that are obscene, threatening, or harassing; that advocate criminal behavior; that contain clearly inaccurate information; that are unrelated to the intended topic of discussion; or that contain spam or links to third-party sites. 6. A statement that: “the administrators of this page reserve the right, with or without notice, to block or restrict access and/or comments of any user who violates these guidelines[.]” 7. An express statement that comments on the page are subject to the policy. Alternatively, sheriffs are not required o permit the public to respond to social media postings. The decision of Hyde v. City of Hollywood is instructive on disabling comments. In Hyde, a police department’s Facebook page completely disabled any public responses. Addressing a challenge to the public’s inability to respond to postings by the police department, the court explained that viewpoint discrimination is prohibited in a forum such as the social media maintained by the police department. However, because the public was not allowed to comment, the police department did not engage in viewpoint discrimination in violation of the First Amendment. If public comments are not to be permitted, then a sheriff cannot choose which members of the public may respond. In essence, the social media page is similar to a bulletin board with the sheriff controlling the information shared with the public. In practice, sheriffs who use personal social media are more inclined to encourage responses from the public so they can promote a dialogue with their constituents. It may be more practical for the official Facebook page of the sheriff’s office to function as a bulletin board and disallow comments from the public, while the sheriff’s personal social media invites the public to comment. In such a case, the sheriff should be mindful of the content; as previously noted, a sheriff can easily transition from personal to official communications, thereby inviting lawsuits for arbitrarily removing postings that are subjectively offensive to the sheriff. At the very least, a sheriff may wish to publish a social media policy similar to the one adopted by the Volusia County Sheriff’s Office. The best advice, however, is to keep the social media page personal in nature and use the sheriff’s office social media for official communications. Questions regarding this legal issue should be directed to a sheriff’s legal advisor or may otherwise be directed to Wayne Evans, general counsel for the Florida Sheriffs Association. He may be reached at the Tallahassee office of Allen, Norton & Blue, P.A. at (850) 561-3503 or by email at revans@anblaw.com. Footnoted versions of this article are available upon request.

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