By Michelle L. Villarreal and Anahit Sargsyan, Aleshire & Wynder, LLP
The global pandemic has highlighted the benefits, and potential problems, of local governments utilizing social media in their operations. The United States Supreme Court has described social media platforms as the “modern public square” noting that constituents may “petition their elected representatives and otherwise engage with them in a direct manner.” (Packingham v. North Carolina, 582 U.S. __, 137 S. Ct. 1730 (2017).) Incorporating social media into a district’s practices promotes not just efficiency, but also transparency and accountability.
Special Districts provide essential services that millions of residents and businesses rely on daily, but they are also a relatively unnoticed part of local government. Lack of public awareness and the growing number of Special Districts can make it difficult for citizens to link specific services to the providing entities, reducing opportunities for democratic engagement. It is no secret that public participation in local government elections is comparatively low, even more so in the case of Special Districts. Many customers utilize Special Districts’ services without being particularly aware of how the districts are structured and operate. It has been suggested that because of Districts’ specialized nature, many residents may prefer services by Special District once they know how services are arranged.
As social media is making its way through every aspect of our lives, its power to increase awareness about local government agencies cannot be understated. Over 60% of Americans report using the internet to access government information. Increasing your District’s social media presence can help increase public awareness and engagement. This includes sharing links to video of public meetings or other events, encouraging public participation. Utilizing social media platforms also reduces public relations and advertising costs by reaching people on platforms they already use. Another benefit is providing real-time updates, such as emergency alerts and public service announcements. Information is shared quickly and citizens can provide feedback nearly instantaneously.
A well-crafted social media policy can set clear guidelines and expectations for board members, employees, and the public. A policy will not only ensure that the most up to date information is publicly available, avoiding the spread of misinformation, it can also help defend against litigation. Developing case law has held that the social media pages of local government agencies and elected officials are public forums of speech. A district can find itself entangled in costly litigation for infringing First Amendment rights. Such policies should be reviewed and updated on an annual basis to protect the district and promote social media as a public resource.
The California Legislature responded to the need to address where public officials’ use of social media fits in the Brown Act context with the passage of AB 992. The Legislature clarified that public officials may communicate on social media platforms, but are prohibited from directly interacting with one another’s posts. Nuanced issues around commenting, liking, and sharing posts remain not clearly addressed.
As special districts become more reliant on social media, keeping potential First Amendment issues in mind is increasingly important. As a public agency, a District cannot restrict its employees’ First Amendment right to comment on matters of public interest. Therefore, a public employee’s off-duty social media posts are protected speech. A public employer cannot discipline the employee for their posts unless it can make certain showings, such as a disturbed work environment, which is a hard standard to meet.
Many pertinent questions around government use of social media are yet to be addressed by the Legislature and courts. In the current climate, it is important to be aware of the potential pitfalls of using social media and remain updated.