The First Amendment of the United States Constitution is one of the most famous and most important amendments. It protects our most cherished freedoms – speech, press, religion, and assembly. The amendment generally prevents the government from restricting these rights.
But does the first amendment apply to social media?
Social media and the First Amendment have an interesting relationship. On the one hand, social media outlets are protected and governed by the first amendment. On the other hand, as private entities, social media companies can impose content-based restrictions. This has created a number of controversies in recent years.
Let’s see how freedom of speech applies to social media and what you need to know about the First Amendment and social media policies.
What is The First Amendment?
The First Amendment of the United States says that the government can’t make laws or do things that stop people from being able to say what they want. The First Amendment comes into play when a government agency sets up a place where people can talk.
Speech has the most protection in a traditional public forum, where it can’t be controlled in any way. Then there is a limited public forum, which can be controlled by putting reasonable limits on time, place, and way.
The First Amendment and social media
Most courts that have looked into this agree that social media sites run by the government offer a limited public forum. On social media, people can use their freedom of speech rights to say what they think, and it is probably against the law for the government to hide, delete, or block comments based on the person’s viewpoint.
Do you know what to do as a public agency when a comment on your feed goes against the values of your agency? Do you know how dangerous it is to go against the First Amendment when you moderate comments?
You might be surprised by the things online that are protected by the First Amendment.
What you shouldn’t take down from your social media
So, how does social media affect freedom of speech?
The First Amendment usually gives the most protection to the speech that bothers us the most. However, you shouldn’t go down the path of deleting comments that are “misleading”, since almost every comment can be misleading to someone.
Anyone who thinks their First Amendment rights on social media have been violated can sue both your agency and you. This is a serious Constitutional violation, so you must be careful if you want to delete or hide a comment on a government social media site.
Hate speech is one kind of offensive speech that shouldn’t be taken down from a government social media site. You and your agency can get in trouble if you delete hate speech or speech that is offensive.
For example, if someone sees that their comments were deleted, hidden, or blocked in a way that violates the Constitution, they can sue in federal court. The Supreme Court and other federal courts have said that offensive, hateful, or harassing comments are protected in a limited public forum.
Even though this kind of speech on your government agency’s website might be annoying, you can’t take them down legally.
What isn’t protected under the First Amendment?
As a public agency, it’s vital to know what the First Amendment doesn’t protect when you moderate comments on social media.
Here’s a list of things that aren’t protected by the First Amendment and that can usually be deleted or hidden from government social media comments:
- Defamation — Defamation is making a false claim about a fact that hurts someone’s reputation. For something to be considered defamation, it needs to be a false statement of fact and it must cause damage. So, opinion statements can’t be defamatory, and they can’t be deleted or hidden on the grounds that they are.
- Threats — The First Amendment does not protect a real threat for a number of reasons. Usually, it’s a crime, and you could be charged as such.
- Obscenity — There are many kinds of obscenity, but the most common kind on social media is content that is pornographic or harmful to children. You probably won’t see this on social media, because there are strict rules about what can be posted and how it can be filtered. Note that swearing is not the same as being obscene, and it is usually protected as free speech.
- Illegal activities — If someone is using your page to commit a crime, try to commit a crime, or tell other people to commit a crime, it can be deleted or hidden. Also, you should tell the police.
- Illegal discrimination — Comments can be taken down if someone says something that clearly promotes or encourages illegal discrimination by your agency. There is no right in the First Amendment to tell the government not to hire someone because they were born in a certain country or because they are of a certain religion.
- Copyright — Copyright is meant to protect creative work that is unique. No one has the right to post something without permission from its creator.
- Malware links — A malicious URL link is one that is made with the goal of messing with how a computer or network works. These links are not protected under the First Amendment and they can be deleted.
- Spam — Spam comments are quite common on social media posts. If it has to have nothing to do with your topic, your business, or the post itself, you can delete it.
How Jatheon can help
As a public agency, you are probably going to run into comments and activity that goes against your agency’s values. There may be some people who share your agency’s values, but other people may not.
While the First Amendment protects your agency in a limited public forum, deleting or hiding comments can be illegal. Even if you are allowed to delete certain comments, it might not be the best option. It’s better to archive your social media comments instead.
For example, in case of defamation, you might want to have proof instead of simply deleting the damaging comments. That’s where Jatheon comes into play.
Jatheon offers social media archiving solutions that can help you prove the data authenticity necessary in legal cases, automate legal holds and streamline your compliance and FOIA processes.