Season 2 Episode 6: Is My School Board on Facebook?

Rounding out our three-part series on technology, we are joined by James McWeeney who discusses what happens when school districts use social media to interact with their communities. Can a district-sponsored Facebook page, for example, delete a parent’s unflattering comments? When does deleting comments implicate First Amendment issues and public-records questions? What is a public forum and how should school districts organize their social media presence to protect themselves from constitutional claims? Join us for a fascinating look at these and other challenges faced by school districts who use technology in communicating with the public.

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Miriam: Welcome back to Class Act: Updates in Education Law. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We’re attorneys at Walter | Haverfield in Cleveland Ohio. We practice school law and every so often, we get together and we chat about the latest legal developments.

Lisa: Today, we are continuing our series on social media with a look at what happens when the school districts themselves are using social media platforms and some of the implications. With us, again, today is James McKinney an attorney at Walter | Haverfield who frequently advises districts on legal issues such as technology. Welcome back again.

James: Thank you again for having me.

Lisa: Welcome, welcome.

James: Thank you.

Lisa: First of all, James, to what extent is this even an issue? Are school districts really on Facebook, Twitter and how often is this becoming a problem?

James: Every single day.

Lisa: Really?

James: Yes, absolutely. School districts increasingly are using Facebook, Twitter, similar types of technological tools to communicate with students, with parents. Absolutely, it is out there. The issue is that when school districts adopt and use their own social media page, there can be some constitutional questions that are created.

Lisa: Like what? Can you give us some examples? What are some examples?

James: For instance, and I’ll just give you a factual example not necessarily the constitutional question, but let’s say you’re the superintendent, you’re scrolling through your web page, it’s your own district Facebook page.

Lisa: School district has a Facebook page?

James: School District has a Facebook page. You’re scrolling through, you’re reading comments, lots of lovely things are being said by different parents in the district about the wonderful job that you’re doing. Then all of a sudden you get to the bottom of or the most recently posted comment and it’s a parent who is just trashing you, trashing the school board, saying that you’ve made horrible curricular decisions, all kinds of things related to that. It’s right there on your district-owned and district-sponsored Facebook page.

Miriam: For everybody to see.

James: Everybody out there can see it because this is public. This is out in the world. We talked about this in connection with kids, but this is now out there for the world to see so long as someone actually types in the address and wants to find it. You’ve got this post and your initial gut reaction maybe, “I’ve got to get this thing off of our district-sponsored Facebook page.” But you need to hold that thought.

Lisa: You can’t just delete the post?

James: Absolutely. You need to stop, weigh and consider a couple of really important questions. The most important is, is our district-sponsored social media page a public forum? Is there some sort of free speech right that this parent had to post this comment about my superintendent performance and the performance of board members? Is this a public record? If so, is the school district even able to delete it? There are tons of different issues that come into play just with the simple posting of that comment from a parent on your district-sponsored Facebook page.

Lisa: You had mentioned public forum. Let’s dive into that a little bit for our listeners and explain it and how it’s related to free speech.

James: Yes, sure. It’s a complicated legal issue, very complicated, but we’ll try to break it down so it’s much more understandable. Public forum law is essentially a body of law by which citizens can make expressive use of government property or government spaces. It’s a space that’s owned by the government that citizens can use to exercise their free speech rights.

Miriam: Some examples.

James: When you are talking about public forum, you need to know that there are various types of fora. I think it’s fora. Fora, fauna, whatever it is.

Lisa: Fora.

James: Fora. We’ll go with fora. Various types of public fora and each one of them, depending on what they are, get different levels of scrutiny from courts in terms of what people are allowed to say in those fora. Also, then we’re talking about realistically the ability of a school district to control and/or exclude the type of speech that’s going on in its forum.

Miriam: In other words, what you’re saying, James, is that the government can limit speech based on where it takes place?

James: On government-owned property, yes.

Miriam: What kind of property that is?

James: We’ll talk about the different examples. For instance, a traditional public forum is one category. That is sort of like it sounds, it is traditional. Think this is the place on the park, street corner, sidewalk where the government may own the space but traditionally, people have been given the right to really speak freely in those particular areas. If you’re the government, you have little opportunity to come in without advance notice and limit what somebody is saying on a public street corner or in a park. You as a speaker on that government property, you get more protection. If government tries to limit it, a court’s likely to strike it down. That is traditional public forum.

Another example is what we call designated public forum. This may not be the park or it may not be the sidewalk, but it’s something that the government owns and says, “We are going to actually dedicate this property to open speech.” Even though it isn’t a park, even though it isn’t a sidewalk, it’s government property that is treated that way.

Miriam: Like a town hall, I’m thinking?

James: Yes. Speakers get a lot of protection in those different pieces of property. Lots of protection, less ability of the government to control what it is that you as a citizen are saying there. There’s another example and this one is really important for schools because this is where we traditionally find schools. It’s the limited public forum. Limited public forum, you’re not going to get as much ability to speak freely. There are limitations that the government can set in terms of what you can say. You can designate who’s allowed to speak in the forum. You can designate what that speaker is able to say in the forum.

Miriam: Right. If I’m a preacher and I want to talk about the apocalypse that’s coming shortly, I can’t just walk into a school building and just start preaching. Right?

James: Yes, that would be a problem for a number of reasons. I would run the other way if you see that happening.

Miriam: [chuckles] I guess I’m setting up the example. I can stand on a street corner, but I can’t do it in a school building.

James: Absolutely. Again, traditional, public, think, it’s a park. I can speak there without the government. All of a sudden, coming along and saying, “You can’t say that.” Limited, the government still owns the property, but it can designate ahead of time who’s allowed to speak in it and what they’re allowed to say. That’s why we call it a limited public forum.

Lisa: When you say ‘limit’, who’s speaking and the things that they can talk about, we’re talking categorically not, “Miriam, you can talk, but James you can’t.”

James: Right. Think of it as boundaries that are non-discriminatory that are in place up and ahead of the creation of the public forum.

Miriam: That apply to everybody, the boundaries have to apply equally to everybody.

James: Right. That is really the example of limited public forum. There are others. We’ve got our traditional, it’s open, generally speaking, to everyone and whatever you want to say. We’ve got limited, restricted upfront in terms of who can talk and what it is they can say. Non-public is an example of government property where you are not given the ability to say as much of what you want to say. For instance, a military base. I may be strolling along the street and I see a military base. I can’t just go in and start talking to folks and saying, “Hey, this is open for public speak. I can say whatever I want.”

Miriam: The apocalypse is coming.

James: They’re going to say listen, “You take your apocalypse and you get out, you’re done. You are not here.” Non-public is something where generally speaking, you are not going to be given the ability, as a citizen, to speak as freely as you want.

Miriam: This is like a continuum. You’re kind of describing continuum places.

James: Absolutely. Think about on the one end is public forum, much more ability to say what you want, much less ability of the government to exclude or control it. On the opposite end is non-public. That’s where government can say, “Wait, wait, wait. This forum is not meant for you to come in and speak your mind.” Limited is somewhere in the middle. It’s almost like Goldilocks’s porridge. In that middle spectrum, and that’s where schools generally speaking are located, you’ve got limitations that are in place but they have to be done upfront and they have to be applied consistently.

Miriam: What about government speech? Is that on this continuum at all?

James: It’s not necessarily on the continuum but think of it as being a part of the continuum, almost overlaying the entirety of the continuum. If you’re the government, you have the ability to speak.

Lisa: AKA, in our situation the school district, like a board member or somebody representing the district?

James: Absolutely. Let’s take our example from the beginning. We have a school district Facebook page. If you’re government, you have the ability to put your message out there and a Facebook page is just an example of the government putting its message out there. If you’re a school district and you have a Facebook page or even your own Internet web page, generally speaking you put nice things up there. Good things that are happening in the school, positive ratings.

You want to speak and to talk about the good things that you’ve done. You’re able to do that as a government actor. If you don’t like what people say, you can vote the bums out. That’s the way that it goes but government speech is certainly an avenue by which government is able to speak. The question becomes, if you government open up that forum or open it up to some extent for other speakers other than yourself, have you created a First Amendment issue regarding what those speakers are and are not able to say?

Miriam: I was thinking about a good example is any .gov website. The Federal Department of Education, or really, the family policy compliance office any, any .gov website is the government speaking, but it’s only the government speaking. You can’t just go on to the Federal Department of Education and write up whatever you want there. You cannot access that website.

Lisa: So only basically that entity is putting content onto the page.

Miriam: Right. Only that entity is putting content on the page and that’s a little bit different than what could happen with a district, a school district Facebook page.

James: Right. Here’s an example of what you were just talking about, we’ll piggyback off of that. If you have a, let’s say that you are talking about a district Facebook page. District owns and district sponsors that, its government property. Let’s say that you are the only, if you’re the school district, you’re the only person who is putting up messages on your own Facebook page. You are the only person who is actually communicating to the public. That’s government speech, and it’s going to be treated much more like a non-public forum because the public is not participating.

However, that starts to change to the extent that you allow people to also post comments. If you’re posting comments, if you have allowed the posting of comments from people, parents, other educators, other community members, then it’s quite possible that you have gone from government speech and a non-public type forum to something that affords the people who are putting comments on your page First Amendment protections, which schools may not be aware of, but it’s hypercritical for them to know this, because there can be liability concerns with then restricting the speech that Facebook users or other folks out there are posting on to your district-sponsored web page.

Miriam: Really, what you’re saying is, it depends on how you set it up from the beginning. It depends on how you set up your Facebook page.

James: Yes. Let’s talk about some examples. Let’s say that you’re the school district and you say, “We’re going to create a Facebook page, but we are not going to let anybody use it. It’s just us speaking. We just talked about that example.” If you consistently apply that policy and you disallow folks from getting onto your web page and making comments, that’s your forum. There are less opportunities then for people to come in and say, “The district won’t let me on their page. They violated my first amendment rights.” Not the case, because it simply has been reserved for the government.

Now, let’s change the facts a little bit. Let’s say that you get a Facebook page and you’re really excited because this is tech. Right? This is so cool. This is tech and so you say, “We’re going to create this page and we’re going to open it up to everybody.”

Miriam: Transparency.

James: This is a transparent government institution. That’s what we’re all about here, right? If you, in that instance, say, “Look, we’re going to get this thing up and going. It’s a Facebook page. We love it. We want people to be engaged, and we’re going to open it up to everybody.” At that point, you have created a public forum, and a public forum, even if it’s a Facebook page, it’s your government-owned property so you then give many and much more rights to people to express their opinions, and they are protected much more so under the First Amendment in doing so.

Lisa: Basically, it’s going to limit what you as the district can filter on there.

James: Absolutely, yes. Let’s say, again, you open it up, you create a Facebook page, and you say, “It is for the world to add to and comment upon.” At that point in time, you could have created a public forum and that then gives the users of your public forum, the speakers, the citizens, more protection under the First Amendment to speak and, Lisa, as you said, less ability if you’re the school district to limit, curtail, restrict what’s being said on your forum.

Lisa: What if there are things that you want to restrict? How would you go about that?

James: That’s the great question. This is where we get back to Goldilocks’s porridge. A lot of times what districts will do is instead of going just government-speak, I’m only going to create this page for just the government or the opposite, which is we’re going to open this up to anybody whoever wants to comment, no restriction. A lot of schools pick Goldilocks. They pick the limited public forum. What happens there? In the limited public forum, you can say in a policy upfront, “Here is what our district-owned and district-sponsored Facebook page is intended to do. It is for discussion of district-related topics.”

It could be even something that’s more narrow, like let’s say, a Twitter page related to a girls basketball team from the school. You can define upfront what that district-owned sponsored social media page is used for. Then what you have to do, if you’re the district, is practice what you preach. If you say this Facebook page is just for district-related discussions, or if you say this Twitter account is only for discussions related to the girls basketball team, you got to practice that, you got to practice what you preach, because if you veer from what you preach, if you start to let in comments that otherwise don’t relate to that forum, you may have created something that gives more protection to the people who are using your social media.

Lisa: In previous episodes, very frequently, we’re talking about having board policies in the first place, and also knowing what gets in there. I think you’re hitting on the third component of being consistent about that, because it’s great to have a policy that says, A, but if you on a regular basis are permitting B to happen, it’s going to negate some of what you have put in your policy.

James: Yes, 100%, that is absolutely right. The effect of that, though, is really important, because what you may have done by not following A and doing B is created a public forum that allows more folks to say what they want with more First Amendment protection. Let’s take it all back to the beginning, where we talked about our example. Let’s say that you had a limited public forum, a Facebook page that allows people to talk about district-related business. Technically, that parent who has gotten on and started talking about the board members and started talking about the superintendent, that’s district-related business. You may be prohibited under the First Amendment from removing that content because you disagree with it. That’s viewpoint discrimination. That’s a problem.

Miriam: That’s what I was going to clarify a little bit here. The Districts do not have to allow any comments on their Facebook page. They can just create a Facebook page which allows only the treasurer or the board members to post or the superintendent to post. They don’t have to allow the public to comment, but if they do allow the public to comment, they cannot discriminate based on a viewpoint. I guess what the First Amendment is concerned about is we don’t want the superintendent to say, “Well, you’re saying a positive comment about the board and about our school, so we’ll leave that on that. We’re going go leave that right on there.

James: That’s front and center.

Miriam: Right, but you the other parent who is criticizing that, we’re going to just remove right away because we don’t like it.

James: We don’t like that speech.

Miriam: Right. That would be viewpoint discrimination, and that’s generally impermissible.

James: That’s impermissible and this is where, again, it’s easier when we were talking about just back in the day with our building. Let’s say, we’re going to let certain student groups in, but then we don’t let one type of group in, we’re discriminating against that particular group. This all starts to change, the more and more we implement and use and incorporate technology into our lives.

The district-sponsored social media page is a great example of that. You may not, at first blush, think, “I’ve got this negative comment here about me and the board on our page. I can just remove it.” No, you have to pause, you have to sit back and think that there could potentially be First Amendment protections based on whether or not in either policy or practice, you’ve created an open public forum.

Miriam: We’re just talking today about different kinds of public fora and the continuum of where your school district’s Facebook page can fall. If you actually have a question about this, it’s going to be very fact-specific and you should always consult with an attorney. The most minute change and effect pattern can affect the legal decision.

Lisa: That’s a great point.

Miriam: Setting clear guidelines for teachers, students, and the public is really the key. That’s really the key takeaway here from our conversation. I really appreciate your coming in, James. Thank you so much for joining us and sharing all your expertise.

James: Again, thank you for having me. I’ve really enjoyed talking to both of you.

Miriam: Join us for our next episode and please rate us on iTunes or Stitcher wherever you get your podcasts. Thanks to everyone who has rated us so far. We appreciate your emails and comments. Keep them coming. Have a great day.

Disclaimer: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship, and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter | Haverfield does not guarantee the accuracy of the information contained in this podcast.