- October 17, 2024
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A new U.S. Supreme Court decision has the Palm Coast city attorney cautioning council members on how they handle social media comments and posts.
The case, Lindke v. Freed, was an unanimous decision limiting state actors from excluding constituents from public forums, both on- and offline. The case is based on the First Amendment, City Attorney Marcus Duffy said, and establishes the test for when local government official are considered “state actors” when they post on social media.
The city manager in the law suit had repeatedly deleted comments on his Facebook that he didn't like or agree with on posts about city governance, Duffy said. The test for the new case law is in two parts: first that the posted information is acting under the person's authorization and second that the information is being used to further the person's official responsibilities.
"Think of social media like what we're doing here, you and I are having conversation," Duffy told the council on July 9. "So if you block them, you're not letting that person have their First Amendment right to give an opinion on a local government matter."
Duffy said while he recommended council members have a disclaimer on their social media noting the page as the person's personal opinion, that might not be enough to protect them if the council member is posting about official matters.
There are limitations, he said. Vice Mayor Ed Danko asked about removing comments with profanity, and Duffy said that would fall under hate speech, which is not protected speech. Information that is already public also does not fall under the ruling, he said, when council member Theresa Carli Pontieri asked about answering a question, as an example, about park hours.
“Basically," Pontieri said, "we all have our personal pages, but the moment we take official action or state something in that regard, we've now almost transformed it into a more official type page.”
Duffy recommended city officials have private, personal social media pages and then official pages that were publicly accessible. For campaigning, because it is election season, he said, blocking or deleting political comments could potentially fall under the new case law, too, though that has not been tested yet.
“If you're going to engage in Facebook and you're going to put stuff out there," Duffy said, "I would say, be open to the feedback you're going to get.”
But recently, it wasn't the elected official's social media posts that caused residents to be concerned. At a June council meeting, residents many residents were upset that the official city social media pages were promoting one-on-one Town Hall and Meet the Mayor events with Mayor David Alfin.
Several residents — some of whom are Alfin's political candidates — said the posts were using city resources for political self promotion.
Throughout the year, the city has hosted Town Halls events, usually with some combination of council members and high-level city staff, and promoting the events on official Palm Coast social media pages. In July, Alfin has five solo events scheduled — one Town Hall and four "Meet with the Mayor" events — just weeks ahead of the Aug. 20 primary election.
At the direction of the council, Duffy conducted case research into the issue. In a memo emailed to the acting city manager and the council members, Duffy said he ultimately found the city promoting the city-organized events do not fall under either political activity or political advertisement, as long as the meetings are used for official city business.
"Town hall meetings cannot include the use of campaign activities or any communication concerning an issue, referendum, or amendment that is subject to a vote of the electors," Duffy wrote in the memo. "As long as the town hall meetings stay within these guidelines, then the mayor, City Council, and city staff can continue to use such forums."
Despite the legality of hosting the events, Vice Mayor Ed Danko said in the June meeting that, because of appearances, he would no longer participate in future Town Hall meetings until after the election. Danko, regardless of the outcome of his campaign for Flagler County commissioner, will not be a council member after November.
