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Wednesday, January 20, 2010

Government-Sponsored Social Media Sites and the First Amendment

Suppose State University Law School sets up a Facebook page whose stated purpose is "to allow all current law students to discuss law-school-related issues."  The leader of the Law School Democrats and the leader of the Law School Republicans begin a heated discussion on the Law School's Facebook page about President Obama's policy of sending more troops to Afghanistan.  The Law School Dean orders the school's Facebook administrator to remove the discussion on the grounds that it is not law-school-related.  The Dean also orders several comments removed from the page because they contain profanity.  Are the Dean's actions constitutional?  What if the Dean sets up a Facebook page for alumni and students, which anyone may join, called "Fans of State University Law School" or "State University Law School Today"?  Does he retain complete editorial control of these pages?

These questions ought to have easy and clear answers, but they don't.  The answers require close examination of public forum doctrine and government speech doctrine, both of which are, to put it politely, lacking in coherence.  The doctrines present government actors with a dilemma.  It is clear that a government actor can create a Facebook page that is purely informational and retain complete editorial control over that page.  In that instance, the Facebook page is purely government speech.  However, that type of Facebook page utterly misses the point of social media and is unlikely to attract the desired audience.  The point of social media, after all, is interactivity, but a government actor that creates a completely open and interactive Facebook page runs the risk of creating a designated public forum over which it has very limited editorial control.  That's a fine result if that's what's intended, but my sense is that many state actors are inadvertently setting themselves up for embarrassment or even possible future First Amendment litigation in their zeal to jump on the social media bandwagon. Anway, I plan to examine these issues and more in an article I've just begun researching.  If the degree of interest at my own university is any indication (see more below), there's a tremendous need for clear legal guidance regarding government use of social media. 

On Friday, January 22, I'll be speaking on a panel entitled Social Media: Promises and Perils.  The speakers include my former dean and privacy expert Jon Mills, UF Deputy General Counsel Barbara Wingo, UF Chief Privacy Officer Susan Blair, UF Relations VP Jane Adams and Human Resources VP Paula Fussell.  The "live" audience promises to be well over 150 even though it hasn't been advertised to students, and the online audience is likely to be even larger.  In case you are interested in these issues, the event will be webcast.  Go to http://strategiccommunications.law.ufl.edu/seminar/.    Topics include privacy issues, public records and Sunshine laws, public forum doctrine, libel, student disciplinary issues, academic freedom, employment-related issues, and many more.

Posted by Lyrissa Lidsky on January 20, 2010 at 02:24 PM in First Amendment | Permalink


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I hope you will post (publish) any findings you come up with on finding a clear and understandable (legal) guidance in social media for government/education.

Posted by: Chris S | Mar 12, 2010 3:22:04 PM

This blog, already strong, has benefitted immensely from your arrival on the scene. Thanks for yet another very thoughtful (and thought-provoking) post.

Posted by: Cory Andrews | Jan 21, 2010 2:16:30 PM

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