First Amendment & Social Media Decision Tool

1
WELCOME!
The professionals (including two First Amendment lawyers) at Communications Counsel regularly advise government agencies on crisis communications and social media policy as well as how the First Amendment freedom of speech clause applies to those two disciplines.

This tool will help you determine (along with consulting your attorney) whether a social media page that is administered or sponsored by -- or otherwise created in the name of -- an elected or appointed government official is subject to the now-settled caselaw that government social media pages are limited public forums consistent with First Amendment jurisprudence.
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SOME INITIAL CONSIDERATIONS
If a social media page is a limited public forum, federal courts (via numerous district and circuit court rulings left intact by the U.S. Supreme Court) have held that comments on such pages can only be moderated (meaning deleting, hiding, or blocking) in a viewpoint-neutral fashion. Failing to act in a viewpoint-neutral fashion can be a federal civil rights violation and can mean that agencies and agency employees will pay significant money damages and attorney’s fees.

For the purposes of this tool, a “public official” is either a government employee or an elected officeholder. A political candidate who is neither a government official nor an elected officeholder is not a public official.
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BLOCKING AND USE OF FILTERS
This tool does not analyze the unique effects of blocking a user from a government social media page or applying another page-wide content limitation (such as using a profanity or term-specific filter, which are problematic practices as we detail in our trainings).

A public official who has a mixed-use social media page (where some posts are personal and others are about government business) faces serious legal concerns if that official blocks a user from viewing the page.

Ask your attorney to read these cases (“Social Media and First Amendment Reading List”) and then consult with your attorney before you use the profanity or term-specific filter to block a user.
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LET’S USE THE TOOL!
This will help you understand how to treat a social media page that might be deemed a government page that is required to follow all First Amendment law. Just answer the following questions, which are based on federal case law including the unanimous U.S. Supreme Court ruling in Lindke v. Freed from March 2024.
5
Do you acknowledge and agree that the attorneys who created this tool are not your lawyers and that the information in this tool is for educational purposes only and does not create an attorney-client relationship?
Yes
No
6
STOP

You are not eligible to use this tool.
7
Which does the social media page purport to be: in the name of a person or in the name of a government agency?
Government Agency
Person
8
Stop

This is almost certainly a limited public forum. Do not delete or hide comments that are otherwise protected by the First Amendment.

Take steps to ensure you, your agency leaders, and communications staff receive competent First Amendment and Social Media training, since federal courts have held that failure to provide such training can make it easier for people suing government or government officials to collect money damages from them.
9
Is the person a public official?
Yes
No
10
STOP

The social media page of a person who is not a public official is not a limited public forum. As a result, that person can delete, hide, or block comments on social media posts without violating the First Amendment.
11
Does the social media page have an obviously written disclaimer saying something like “This is the personal account of George Washington [or] This is the campaign account of Citizens for George Washington [and] not a government account for discussion of government issues. Please see Agency page [or] Official Councilman George Washington page [link] for information on government issues.” ?
Yes
No
12
Adding such a disclaimer reduces (but doesn’t completely eliminate) the likelihood that a federal court will declare the account to be a limited public forum and subject to First Amendment law.
13
Does the public official’s job (by statute/ordinance/policy, longstanding custom, or job description) require him or her to communicate to the public or regularly speak to the public?
Yes
No
14
CONTINUE

It’s unlikely that this page is a limited public forum. But proceed for more clarity.
15
Are some of the posts on this page about the work of the agency and written by another person (such as a government communications staffer) as part of that person’s job duties?
Yes
No
16
STOP

This is likely a limited public forum. Do not delete or hide comments that are otherwise protected by the First Amendment. Take steps to ensure you, your agency leaders, and communications staff receive competent First Amendment and Social Media training, since federal courts have held that failure to provide such training can make it easier for people suing government or government officials to collect money damages from them.
17
CONTINUE

The page is likely not a public forum but some of the posts may be. But proceed for more clarity.
18
Is a particular social media post on this page simply a repost (without substantive comment) of something previously issued from the government agency with which the public official is affiliated?
Yes
No
19
CONTINUE

It’s unlikely that the post is a limited public forum. Comments on this post can be hidden or deleted without First Amendment liability. But proceed for more clarity.
20
Is a particular social media post related to, or part of, the public official’s job?
Yes
No
21
STOP

It’s unlikely that the post is a limited public forum. Comments on this post can be hidden or deleted without First Amendment liability.
22
STOP

This post is likely a limited public forum. Do not delete or hide comments that are otherwise protected by the First Amendment. Take steps to ensure you, your agency leaders, and communications staff receive competent First Amendment and Social Media training, since federal courts have held that failure to provide such training can make it easier for people suing government or government officials to collect money damages from them.
Should be Empty: