Social Media And Elected Officials: Navigating Uncharted Territory

By Stephanie York/Hennes Communications

Q. I work for a government agency and am an elected official. Our office maintains a social media presence, my campaign maintains a social media presence, and I also have a personal Facebook page. What should I do to be sure my “personal” pages are not subject to public records law?

Laws across the nation are evolving regarding a public official’s right to maintain personal social media pages and the obligation of that official to abide by public records laws. Even though new cases are playing out daily, there are some rules and best practices you can adopt to help ensure your personal pages remain personal – without violating the public record laws of your state.

Here’s the first rule: This is not legal advice and public officials should ultimately bring questions about what’s appropriate for their personal social media pages to an attorney.

That said, broad guidelines to help public officials navigate these waters – and help the public hold their elected and appointed officials accountable on social media – have emerged.

First, make a clear distinction between official accounts, campaign accounts and personal accounts. Elected officials can clearly distinguish private social media accounts by adding disclaimers or explanations to describe what type of page it is and is not. And then build a high wall between any government page and campaign or personal pages.

The law is clear on this: Government-sponsored accounts may not be used for campaign-related or personal purposes. And personal and campaign accounts should not be used for government related business. Period.

 Second, understand and use privacy settings to manage your personal accounts.  Set your privacy settings to reflect your personal audience, such as “friends only”.

Third, establish a process to follow if you receive a government-related question or comment on your personal accounts. Specifically, have a plan in place for how you’ll forward government-related comments or questions to the appropriate government social media page. Briefly explain to the commenter how the question or comment will be addressed, and how the record will be retained.

Fourth, do not write posts on personal accounts that would fit within the scope of your employment as a government official. And if you do, understand your personal account now may have morphed into a public account.

On July 9, a federal appeals court ruled that President Donald Trump has been violating the Constitution by blocking people from his Twitter account because he uses the account to conduct government business and, therefore, can’t exclude some Americans from reading his posts.

Similarly, in January, a federal appeals court ruled that an elected official in Virginia violated the First Amendment when she temporarily blocked a constituent on Facebook. The Washington Post called it “a novel case with implications for how government officials nationwide interact with constituents on social media.”

The official, in a separate court filing, contended that her account on a privately owned digital platform is personal and she should be able to restrict who gets a chance to speak there without crossing constitutional lines. In this case, she considered a community activist’s posts on her site to be slanderous.

Who’s right? That’s being determined. And these cases will continue winding through the courts, possibly all the way to the U.S. Supreme Court.

Fifth, do not discuss your private accounts in public meetings or documents. For example, do not direct people to follow your personal page during a city council or other public meeting.

Sixth, do not link to your private accounts from an official government account.

Seventh, do not use government devices to maintain your private accounts.

Eighth, do not allow social media chatter to become a public meeting.  According to the National Conference of State Legislatures, you have a public meeting:

• If you have a quorum discussing or commenting on an issue.
• If any official business, policy or public matter is formulated, presented, discussed or, of course, voted.

That’s a potentially broad definition. Court guidance is still evolving here as well, but the bottom line is to avoid inadvertent exchanges that could violate notice and public meeting requirements.

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