City of Placentia
Best Practices for Social Media Use by Candidates and Officials The City Council adopted Policy No. 370, which is a formal social media policy that all officials and employees should comply with. Candidates should become familiar with the contents of this policy so they can immediately comply once elected.
Social media has transformed the ways candidates and elected officials interact with constituents. But social media use by elected officials isn't without potential legal risk. To avoid potential legal liability, candidates and public officials should follow the following best practices with respect to (1) managing content and users on social media sites and (2) interacting with other officials on social media sites.
1. Managing Content on Various Tvpes of Social Media Accounts Official City Social Media Accounts
Elected officials may not lawfully block constituents from accessing the elected officials' official social media accounts because of differing political views. Official City social media pages, and those that are created by an official to communicate with constituents, are public forums where First Amendment protections apply. The following are features of a social media page that would probably be considered a public forum:
• The page is named after the public official's title, such as "Mayor" or "Councilmember";
• The page lists the public officials' official contact information; • The public official is explicitly listed as a "public figure"; • The page primarily contains videos and posts regarding current City issues and the public officials' work with respect to those issues; • The page contains official letterhead or content regarding votes or issues involving the public official and the body he or she is on; 1 • The page contains photos or video of official business at an official meeting; • The page is primarily used as a tool of governance to communicate information regarding official votes that were taken and the effects of that vote on the City; • The page uses government employees and public resources to maintain the account;
• The page contains an explanation of any official agenda item and/or meeting protocols.
To avoid confusion and potential liability, public officials should refrain from using their private personal accounts to engage with constituents on issues relating to official business. Doing so could blur the line between a private social media page, where comments and users can be blocked, and an official social media page, where comments and users cannot be blocked without exposing the City to liability under the First Amendment.
For example, a county supervisor in the case of Davison v. Randall, 912 F.3d 666 (2019) was found to have violated the First Amendment rights of a citizen who the official blocked after the citizen posted critical comments on her personal Facebook page. The court held that because the personal Facebook page contained enough references to the official in her official capacity, censuring of critical comments was attributable to the county and a violation of the First Amendment. The Ninth Circuit, which includes California, recently came to the same conclusion in Garnier v.
O'Connor -Ratcliff, 2022 U.S. App. LEXIS 20719 (July 27, 2022). Personal and Campaign Social Media Accounts.
Social media accounts that are established for campaign purposes or personal purposes cannot reasonably be considered an official City account given that their purpose is to advance the candidate or personal communications and not provide a public forum for citizens. For this reason, candidates and officials can restrict comments and users from social media sites dedicated to their campaign as they would with personal social media accounts. However, if the candidate is elected, continuing use of the campaign page to communicate with the public is risky if users are blocked and critical comments deleted. Rather, the successful candidate should invite their followers to join/follow the official's City site instead of continuing to use the campaign page.
2 The following are features of social media pages that would promote the idea that it is not a public forum:
• The banner photo on the page is a campaign or personal photo; • The page is self -described as a campaign or personal page; • The page is run by a campaign;
• The email associated with the page is a campaign -related email or personal email account, not a City email address;
• The "Intro" and "About" sections of the page contain links to a campaign website or discuss personal items;
• The majority of the posts relate to the public official's campaign activities or personal activities rather than official City business.
A public official who has a campaign or personal social media page, which is used as a campaign newsletter to notify the public of campaign -related items, will likely be permitted to ban comments or users because it is not a public forum. If the page's overall theme is to promote the public official as the right person for the job rather than as an organ of official business, it will not be a public forum, and the public official will not be acting under the color of official authority. However, a social media page that discusses governmental activities, such as announcing appointments and providing official responses to the public, is more likely to be characteristic of a public forum.
The case of Campbell v. Reisch, 986 F.3d 822, 826 (8th Cir. 2021) is an example of how to properly discuss official business on a campaign page without converting the page into a public forum. There, the court recognized that the page was created to emphasize the candidate's suitability for public office and used to promote herself and position herself for more electoral success down the road. While the social media page, in that case, also provided updates on bills, stances on political issues, and the effects of laws, these updates were providing information on campaign promises rather than providing a space to conduct official business where the public must be heard.
Finally, with respect to all campaign accounts, City resources should never be used in any way. Government Code section 8314 prohibits elected officials from using government resources for campaign purposes. This includes using City staff and public 3 funds, and office technology. The easiest way to avoid an ethics violation is, therefore, to use separate social media accounts for campaign activities and official activities.
2. Social Media Use
Public officials may utilize social media platforms to communicate with their constituents about topics within the City's jurisdiction. The Brown Act prohibits officials that sit on the same legislative body (and elected candidates before taking office) from "discussing among themselves" official business on social networking platforms.
These types of "discussions" can be as simple as posting a comment on a social media site in response to a post or even an "emoji" (ideograms or smileys used in electronic communications) where another member has also commented. As minor as an emoji response may be, it is a violation of the Brown Act if only two officials are "communicating" on a social media platform regarding matters within their legislative body's jurisdiction. This could easily occur on popular sites like the Placentia Buzz Facebook page, where posts often have dozens of comments and replies. Prior councilmember comments, replies, or likes could be easily overlooked before another councilmember joins the discussion and unknowingly violates the Brown Act by simply liking a comment in a post another councilmember has already participated in. 4