Troubleshooting Potential Legal Issues in Local Government Use of Social Media

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1 Troubleshooting Potential Legal Issues in Local Government Use of Social Media NEW JERSEY LEAGUE OF MUNICIPALITIES 2014 ANNUAL CONFERENCE NOVEMBER 19, 2014 TARA ANN ST. ANGELO, ESQ. GEBHARDT & KIEFER, P.C..

2 Freedom of Speech " CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE EXERCISE THEREOF; OR ABRIDGING THE FREEDOM OF SPEECH, OR OF THE PRESS; OR THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE, AND TO PETITION THE GOVERNMENT FOR A REDRESS OF GRIEVANCES."

3 Public Commenting Public Forum or Government Communication? Traditional public forum (Ex: Town hall steps or public park) Designated or limited public forum (Ex: State university meeting room; city council meeting) Good News Club v. Milford Central School, 533 U.S. 98 Non-public forum (Ex: airport terminal) Perry Educ. Ass n v. Perry Educators Ass n, 460 U.S. 37 (1983) Government Communication (Ex. Municipal website) Page v. Lexington County School District One, 531 F.3d 275 (4th Cir. 2008)

4 Public Commenting There must be a narrowly drawn compelling state interest to restrict free speech (Perry Educ. Ass n v. Perry Educators Ass n, 460 U.S. 37 (1983)) Protection of public welfare (Gitlow v. New York, 268 U.S. 652 (1925)) Fighting words or threats (Virginia v. Black, 538 U.S. 343 (2003)) Offensive, racist, derogatory (Denver Area Educ. Telecommunications Consortium, Inc. v. F.C.C., 518 U.S. 727 (1996)) Removal or hiding of comments? Hawaii Defense Foundation v. City of Honolulu (2014) settled! There should be a policy to provide for orderly public participation. There should be a neutral moderator who can maintain some level of control.

5 Posts by Non-Municipal Groups Can restrict to those organizations that participate in the forum s official business. Putnam Pit, Inc. v. City of Cookeville, Tennessee, 221F. 834(2000) Similar to banner ordinances with an application or request process. (Need to set up a policy with a group to review requests / applications) Heartbeat of Adawa Cty., Inc. v. City of Port Clinton, 207 F.2d 699 (2002) Reasonable and viewpoint neutral restrictions. Heartbeat of Adawa Cty., Inc. v. City of Port Clinton, 207 F.2d 699 (2002)

6 OPRA IS IT A RECORD? Government record or record means any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by soundrecording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material. N.J.S.A. 47:1A-1.1 HOW TO STORE OR MAINTAIN? Take a screen shot or picture of the Facebook page or Twitter feed everyday? (time consuming) Website and media journaling company, like Smarsh.com? (expensive) SUGGESTION: AVOID CREATING NEW MATERIAL ON SOCIAL NETWORKING SITES AND INSTEAD USE EXISTING MATERIAL THAT IS ALREADY MAINTAINED FOR LOCAL RECORDS LAW COMPLIANCE. But what about comments, tweets, etc. from the public? ALERT THE PUBLIC OF PRIVACY CONCERNS REMEMBER, DELETED COMMENTS / POSTS ARE ALSO SUBJECT TO OPRA SUGGESTION: Don t ever delete posts or comments on Facebook, only hide them.

7 FOIA REQUIREMENT TO MAKE RECORDS AVAILABLE Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall (Public Officers Law 89(3)(a)). DEFINITION OF A RECORD "Record" means any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to computer tapes or discs.. (Public Officers Law 86(4)) OBLIGATION TO PRODUCE Nothing in this article shall be construed to require any entity to prepare any record not possessed or maintained by such entity. When an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so. (Public Officers Law 89(3)(a)).

8 OPMA DEFINITION OF MEETING Meeting means and includes any gathering whether corporeal or by means of communication equipment, which is attended by, or open to, all of the members of a public body, held with the intent, on the part of the members of the body present, to discuss or act as a unit upon the specific public business of that body. Meeting does not mean or include any such gathering (1) attended by less than an effective majority of the members of a public body, or (2) attended by or open to all the members of three or more similar public bodies at a convention or similar gathering. N.J.S.A. 10:4-8 (emphasis added). DEFINITION OF PUBLIC BUSINESS Public business means and includes all matters which relate in any way, directly or indirectly, to the performance of the public body's functions or the conduct of its business. Id. CHANCE ENCOUNTERS OF MEMBERS OF PUBLIC BODIES ARE NEITHER COVERED BY THE PROVISIONS OF THIS ACT, NOR ARE THEY INTENDED TO BE SO COVERED. N.J.S.A. 10:4-7; WITT V. GLOUCESTER COUNTY BOARD OF CHOSEN FREEHOLDERS, 94 N.J. 422 (1983)

9 Public Officials Commenting and Tweeting The law has not caught up with technology yet. If a Quorum of a governing body comments on a post or responds to a tweet, does this violate OPMA? The Florida Attorney General issued an opinion in April 2009 that a government social media site would likely implicate the state open meetings requirements, among other sunshine laws. ( Temporal problem? SUGGESTION: restrict elected officials from commenting on the social networking sites when the topics are addressed in a manner that can be considered discussion of public business. Elected officials use should be limited to first-run comments and announcements, and replies specifically in response to the citizen s comments. Special care should be taken to avoid cross-comments between elected officials and avoid any official action akin on a matter (or even the appearance of any official action). For quasi-judicial matters, elected officials should respond to inquiries on social media sites the same as they would to a telephone call or message inform the person contacting them that the matter cannot be discussed outside of the public hearing.

10 Employee Use NO LOCAL GOVERNMENT OFFICER OR EMPLOYEE SHALL USE, OR ALLOW TO BE USED, HIS PUBLIC OFFICE OR EMPLOYMENT, OR ANY INFORMATION, NOT GENERALLY AVAILABLE TO THE MEMBERS OF THE PUBLIC, WHICH HE RECEIVES OR ACQUIRES IN THE COURSE OF AND BY REASON OF HIS OFFICE OR EMPLOYMENT, FOR THE PURPOSE OF SECURING FINANCIAL GAIN FOR HIMSELF, ANY MEMBER OF HIS IMMEDIATE FAMILY, OR ANY BUSINESS ORGANIZATION WITH WHICH HE IS ASSOCIATED N.J.S.A. 40A:9-22.5(G)

11 Information About Minors RULE OF THUMB: DON T POST ANY PHOTOS UNLESS YOU HAVE A SIGNED WAIVER FROM THE MINOR S PARENTS. CHILDREN'S ONLINE PRIVACY PROTECTION ACT OF 1998 (15 U.S.C )

12 Copyright Laws POTENTIAL COPYRIGHT LIABILITY should be produced by the municipality or individual who posts the media. If copyrighted materials are used, the poster should make sure it obtains and maintains physical records of the copyright licenses. If links are posted, the linked websites should open in external pages, which are separate and distinct from the municipality s page. Disclaimer addressing the content of sites that are linked from the organization s site, specifically disclaiming liability for any illegal or infringing content: By clicking this link you will leave the official Facebook page of Municipality. Municipality is not responsible for the content, nor endorses or supports any advertising that may be contained on this site. Municipality has no control over the content nor the ownership of the domain name and we do not endorse, control, or take responsibility for this organization, its views, or the accuracy of the information contained on the link you have chosen. Policies addressing copyright issues for employees and those responsible for posting information on the social networking site. PROTECT YOUR OWN ORIGINAL WORK- PRODUCT All users of social media sites should also be aware that some social networking sites (such as Facebook) have terms of use in place that state that by posting intellectual property on Facebook an individual grants Facebook a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that is posted.

13 Americans with Disabilities Act DOJ HAS TAKEN THE POSITION THAT ADA ACCESSIBILITY REQUIREMENTS APPLY TO WEB SITES, TELEPHONE ACCESS SYSTEMS, AND OTHER COMMUNICATION MODALITIES OF PUBLIC ACCOMMODATIONS. ( POORLY DESIGNED WEBSITES CAN CREATE UNNECESSARY BARRIERS FOR PEOPLE WITH DISABILITIES. Easily understood site design and lay-out Easy enlargement Method to request the site information directly from the municipality

14 Social Media Policies DON T LET THIS BE YOUR TOWN! California Town Abandons Facebook Page Amid Legal Concerns ( book_page_amid_legal_concerns) HAVE THEM, DISPLAY THEM, FOLLOW THEM METUCHEN IS A GOOD EXAMPLE

15 Social Media Policies Must Haves Make it clear to users that by posting or commenting they agree to the terms and conditions Make it clear to users that their comments and posts are subject to OPRA, FOIA and the Right-to-Know Law Designate certain forums as non-public or limited, etc. Put in place content neutral restrictions on comments that are narrowly tailored to protect government interest State that the municipality reserves the right to delete comments or posts that violate the social media policy State that all content posted on the site must adhere to applicable copyright laws and that the municipality reserves the right to delete comments and posts that violate such and will not indemnify the poster. Designate a moderator and someone to review requests / applications from non-municipal groups. State that the site is not to be used for official communication (i.e. OPRA requests, police reports, etc.) State that no social media site of municipality established without approval and shall clearly state that is maintained by municipality