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A new balance: Social media and public forums

As social media becomes the preferred setting for political discourse, elected officials must be aware of the developing body of law around First Amendment rights in public forums, say attorneys who focus on social media and the law.

Social media, public officials and the law will be the focus of a panel discussion at the annual Maryland State Bar Association conference, which began Wednesday in Ocean City.

Social media “brings up a lot of First Amendment questions,” said Robert Drummer, Montgomery County Council senior legislative attorney. Drummer organized the MSBA panel, which will cover what does and does not constitute a public forum and how elected officials can structure their social media activity to protect themselves legally.

Drummer, who advises council members who encounter problems on social media, emphasized that lawyers today are trying to match “old law with new technology.”

Drummer said his best advice to council members who run into trouble on social media is “subject to change based on court decisions.” While there is no current legal consensus about how elected officials should interact in public forums in a digital space, Drummer has one key piece of advice: Don’t “de-friend” or “knock people off your page.”

Drummer tells council members instead to structure their public social media pages as “limited public forums,” such as city council meetings. For example, if a city council meeting convenes to speak about one topic, but an individual uses his or her time to speak about an unrelated topic, the council members can ask the person to hold his or her comments.

Likewise, if a social media page has a limited purpose, an elected official can delete an individual’s comment if it lies outside the bounds of the page’s stated purpose, Drummer said.

In Maryland, Gov. Larry Hogan last year settled a lawsuit with four residents who claimed the governor’s social media policies violated their First Amendment rights. The Board of Public Works approved a $65,000 payment as part of a settlement that also includes new rules governing Hogan’s social media accounts.

Just one case addressing elected officials’ social media use has reached an appellate court nationally. In Davison v. Randall, the 4th Circuit affirmed a district court judgment that the chair of the Loudoun County, Virginia, school board violated the First Amendment rights of a constituent when she blocked him from the Facebook page she administered.

Leo Rogers, the attorney for Loudoun County who represented the school board chair in the case, will join Drummer at the MSBA panel discussion.

The First Amendment has evolved beyond its original scope and now is expected to cover digital forums as well as public forums created by the government, such as city council meetings, Rogers said.

“If you use the trappings of your office as a method of communication for your official position, it is a public forum,” Rogers said. However, he said, if an elected official has a personal page that can be viewed by the public, the page does not qualify as a public forum because it does not rely on the official’s association to the government.

Rogers, who will discuss two other cases out of Loudoun County that address elected officials’ social media use, says the court’s ruling in Davison may have far-reaching implications.

The MSBA presentation, set for 8 a.m. on Thursday, is titled “Does your elected representative have to be your friend on social media? A look at the 1st Amendment issues that arise when an elected official uses social media to communicate with constituents.” Drummer and Rogers are to be joined by Ashlea Brown, a Baltimore City assistant solicitor, and Caroline DeCell, Knight First Amendment Institute staff attorney.

The panel is sponsored by the MSBA’s State and Local Government Law Section.