Sunday, March 31, 2019

NSBA '19: Political officials and social media

This presentation is by Linda M. Trujillo of Walsh Gallegos Treviño Russo & Kyle P.C. and Kate I. Noble, Sante Fe Public Schools Board president. This is something I've been watching as there have been rulings in other parts of the country around the rights of the public to public officials' social media postings and to being able to interact with them thereon.

"three cases that will give you no sense of stability"
"I may even be able to confuse you even more"

digital media is an easier way to communicate: shifting from paper records to electronic records
speeds communication between government and the public
increases overall transparency, improves services, and improves services
can get a lot of information online
reflect on goals and objectives and how social media can support those core objectives
treat each post as if it were to be on the front page of the apper
no expectation of privacy

Knight First Amendment Institute v Trump
Is @RealDonaldTrump a public forum where speech is protected against discrimination based on viewpoint?
Are his tweents state action?
Does replaying to Trump on Twitter qualify a a petition for the redress of grievances as guaranteed by the First Amendment?
argument over if it is a public or private account
judge ruled that blocking critics violates the First Amendment; individuals were unblocked from account
Government appealed to the U.S. Court of Appeals; oral arguments were heard on March 26 in the Second Circuit
"seems very likely that they're going to be affirming that yes, this is a public forum, not a private account"

also consider:

  • Sunshine laws, including inspection of records and open meetings
    • if your FB account is considered a public forum, the public has a right to the records if it is found that yours is a public account
    • be aware of deliberation on FB among a quorum: don't comment on other members' pages
  • public's First Amendment rights
    • the right "not to speak" like not saluting the flag
    • the right to students to speak (within parameters)
    • contributions
    • engage in political speech as protest
    • "petition the government for a redress of grievances"
  • Elected official's First Amendment rights
  • Board member's Code of Ethics

Davison v Loudoun County
official said she wanted to hear from any citizen in the county, was tagged as Chair of the county board
citizen alleged corruption; she deleted the post and blocked the citizen, then unblocked the citizen the next day
Davidson has three cases ongoing over his communication with public officials
"we have to listen to the good, the bad, and the ugly" at meetings
she had engaged in "viewpoint discrimination" which is a violation of the First Amendment
the supression of critical commentary regarding elected officals is the quintessential form of viewpoint discrimination against which the First Amendment guards

Davison v Rose
(same guy) judge dismissed this case
individuals acting in individual capacity
"the law is less than settled as to whether the Plaintiff had a right to post on a Facebook page maintained by a public official"
here's NSBA on that case
NSBA argued that only a government unit may create a public forum, come into existence only through the intentional policies of the government units (or the traditional locations of sidewalks and parks)
NSBA said that to commander the private social media page of a public officerholder and convert it to a public forum violates the First Amendment rights of the officerholder and that of the officerholder's constituents
Q: if someone tags you, are you violating their rights if you don't respond to the tag? Should you block them? Don't block them, but you'd don't need to respond; you haven't stopped their speech
More likely to be considered a public forum if you speak of it as an elected official
if a government agency creates a page, it's pretty clearly a public forum
Q: if someone tags a quorum, what then? it creates a quorum if others comment, but ONLY if the others comment
The appeal on this case was dismissed and remanded the case to the district court
if you're looking for a bright line, it's not clear that there's going to be one
Q: what if the pages were created and maintained by the district? If the Board had staff to set it up, "but then you need to remember that you'll hear the good, bad, and ugly...or you don't have any comments"
"I think the bright line is going to be very blurry"
your Facebook friends are not necessarily your constituents; that's not "your public"
"if you really want to hear from your constituents, Facebook isn't going to do it for you"
worry not only about First Amendment, but also discrimination, harassment, and retaliation
refer out to email? perhaps
"if people say nasty things about you, you don't have to respond"
Q: what about teachers' posts? That's an employment issue depending on what is said, but talking about students online is a FERPA violation and an even larger issue depending on what you said.

"I would argue that it's just new tools"

  • clarify that you are speaking as an individual, and not as an official spokesperson
  • don't deliberate with a quorum
  • direct complaints or concerns to appropriate person
  • avoid posting about already formed opinions

Q: what are the consequences for someone who is public about their opinion ahead of time? A: the one time that member has to change their mind

  • ask for input through appropriate channels but don't allow social network to direct your decisions
  • post only content publicly released
  • be clear that anything you post about prior meetings that you're doing so only as an individual
  • conduct yourself in a way that reflects well on the district
  • never post anonymously about school business
  • report harassing or defamatory communications around officials, staff, students, or district business
  • retain electronic records
  • report to the district any potential security breach if you lose control or possession of a device with confidential district records
  • comply with acceptable use policies

Q: what if my state rep has blocked me? A: yes, that sounds like something for the ACLU or Knight's First Amendment groups
Q: what if someone else commented using a student's name? A: remember YOU have the FERPA responsibility, not members of the public, however once they've posted on something that seems to belong to you, it would seem to be a FERPA violation
"I think we don't want to be part of hurting a child's life, don't want to be part of a bullying activity"
if it's related to a child

"if you're talking about public business, it is subject to [public] inspection" regardless of which email or account or device is used

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