Durham's City Council continued Thursday to refine a new social media policy for elected and appointed officials with an eye on First Amendment rights and public records law.
The council passed the policy Monday night
but agreed to revisit it during its work session Thursday to allow time to consider public input, proposed revisions, and questions raised by the director of the N.C. Open Government Coalition just before Monday's meeting.
In an email, Jonathan Jones pointed out that the policy did not cover text messages or explicitly lay out a schedule for retaining records (the latter was addressed in today's revisions). He said officials often interpret such policies are more restrictive than they need to be and therefore chill free speech. The version of the policy passed Monday removed a section Jones said posed the clearest First Amendment concerns, but it was added back on Thursday after some discussion.
That section concerned what types of content posted by visitors on the social media pages of city boards and commissions could be deleted by the city. After poring over the language, council members agreed to keep provisions prohibiting posts that use inappropriate or offensive language; discriminate or are derogatory based on race, color, national origin, religion, gender, age, disability, sexual orientation, or veteran's status; violate any terms of the hosting site; or appear to be spam or advertising unrelated to the original post.
Council members struggled over whether "inappropriate or offensive" was objective enough to enforce, but ultimately too few members got behind another wording to change it. City departments, other municipalities, and federal agencies use this same language, said Baker and public affairs director Beverly Thompson.
It’s the first social media policy for Durham’s elected and appointed officials. The intent is to ensure officials’ posts are easily archived and retrievable in accordance with North Carolina public records law and to establish guidelines for how officials should and shouldn’t use social media. The policy is expected to come up again in the council's upcoming meetings as city attorney Patrick Baker clarifies some language.
The policy “strongly encourages” officials to have separate personal and professional accounts. It also stipulates that, while on social media, officials “conduct themselves in a manner consistent with the city’s policies and code of conduct” and all laws, not reveal any confidential information related to the city or constituents, “be honest and accurate when posting information or news,” and not represent themselves as a spokesperson for the city. Baker, the attorney, was asked to provide additional language on what is considered confidential or privileged information, The council also added that professional accounts not be used to campaign for office or promote any candidates for office.
At Jones's advice, the council also amended a provision saying officials' social media posts may
be subject to public records law, instead saying officials should assume
their posts are subject to the law.
Charlie Reece and Jillian Johnson, the council's most active social media users, said they did not feel restricted by the new guidelines. Each has created new "official" social media accounts since discussion of the policy came about.
Reece said the policies that apply to elected officials are "common sense" and will give guidance to future officials who come to city positions with a personal social media presence. He said the policy won’t affect his social media use beyond making sure he posts about city-related business on his official account to preserve those posts, which entails a few steps when followers engage him about city issues on his personal account.
On Monday, Reece suggested the policy be sent back to the procedures committee for additional review after hearing from constituents on social media that they were unaware of the vote.
"I delayed it because I started to hear from folks who hadn't looked at it," he said.
Johnson questioned whether the provisions on what posts could be deleted amounted to government censorship. "I feel it's necessary to interrogate that," she said.
After the meeting, she said language prohibiting "inappropriate and offensive" comments still seems too subjective, but Baker made the case that the social media pages of boards and commissions are more likely limited public forums
created by the city government as opposed to traditional public forums, like parks or sidewalks.
"It’s a long constitutional discussion," Baker said. "The question is, what kind of forum is it? There's case law that hasn’t really gone up to the appellate level."
Jones, who attended the Thursday meeting at the council's request, said the policy was "much improved" from its original form. He said his concerns about First Amendment violations remain, but the new language was more in line with open government regulations. In his email Monday, he specifically voiced concerns about the provisions prohibiting offensive language, discriminatory posts, and advertising on the pages of boards and conditions.
"Attempts to regulate speech in public forums must be content neutral and pass the time, place and manner test established by the Supreme Court," Jones wrote Monday. "Sections 3a, 3b, and 3e of the proposed policy—while admirable in what they are trying to accomplish—are anything but content neutral. They are singling out specific categories of content for prohibition. "