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What Every Law Enforcement Facebook Page Needs

What Every Law Enforcement Facebook Page Needs

What Every Law Enforcement Facebook Page Needs

What do you think a law enforcement Facebook needs?  A sense of humor? Of course!  Timely information?  Definitely!  Lots of photos?  You bet!  Great video?  For sure!  All of these things I have mentioned are important and every law enforcement Facebook page should have them.  Yet, none of these is the one thing every law enforcement Facebook page “must” have: the Terms of Use for the departmental Facebook page.

Public Commentary Surfaces

As law enforcement agencies moved into the digital age and began using social media, they pushed out content to their citizens in hopes of educating and informing the public about items of interest.  As this practice evolved, more and more agencies began allowing comments on some of these platforms like enabling Facebook’s rating section, on their blog page or even on their website.  For general status, video and photo posts on Facebook, public comments cannot be turned off or restricted. However, if your page has a rating section on the left side of the page, this can be turned off.

A Designated or Limited Public Forum

What happens when the comments are laced with profanity or hate speech?  What happens when the agencies platform is flooded with comments critical of the very agency allowing those comments? 

This is the very reason why every law enforcement agency must have its Terms of Use clearly posted on their Facebook page. 

In Perry Education Association v. Perry Local Educators’ Association 460 U.S. 37 (1983) the Supreme Court decided this free speech issue that may be relevant today for purposes of this discussion.  The Supreme Court defined three types of forums:

  1. Traditional Public Forum
  2. A Non-Public Forum
  3. A Designated or Limited Public Forum

A Traditional Public Forum provides the highest first amendment protection and generally includes public parks, sidewalks and other areas that have been open to political speech and debate.  The government cannot discriminate against speaker viewpoint.

A Non-Public Forum is one not traditionally used to express opinions, like an airport.  Again, viewpoint discrimination is not allowed.

A Designated or Limited Public Forum probably offers the closest applicable designation that can be applied to public speech on a governmental Facebook page, blog or website.  A Designated or Limited Public Forum is usually at a time and location which is not a traditional public forum such as a meeting room at state universities.  The government may discriminate against classes or speakers or types of speech, but they cannot discriminate based on viewpoint.

Censoring Comments

So how does this help law enforcement agencies limit certain comments on their social platforms or even hide or delete those comments?

As a governmental entity, you must establish the location where you are allowing comments as a limited public forum.  This can be done by publicly designating the platform as a Limited Public Forum and outlining your terms of use.

In order to restrict certain types of speech, a law enforcement agency must designate Facebook, their blog or a website they are using as a Limited Public Forum and outline their terms of use. 

The terms of use can restrict profanity, hate speech, threats, commercial posts or off-topic posts.  Watch the video below to learn how to create a custom Facebook tab.

 

Case Study #1 – Honolulu Police Department

In 2012, the Hawaii Defense Foundation, a gun-advocacy group, filed a federal lawsuit against the Honolulu Police Department alleging First Amendment violations because comments made on their Facebook page were arbitrarily removed and censored even though the Honolulu Police Department had created a forum open to the public.  Basically, the lawsuit was alleging the speech was removed because the department didn’t like it or agree with it.

According to many commentators, this lawsuit is believed to be the first of its kind in the United States.

Listed below are a few examples of the comments that were removed.

These are just a few examples of the many comments that the Honolulu Police Department removed from their Facebook page. 

In 2014, both parties came to an agreement on the case and it was settled out of court.  The Honolulu Police Department changed its policy about removing comments.  One area in dispute was the agreed upon amount that the Honolulu Police Department would pay in attorney’s fees.  The court ordered them to pay $31,000.

Follow this link to read the entire complaint.

Case Study #2 – Arena Police Department

Another case in 2012 involved the Arena Police Department in Wisconsin.  The department not only removed comments they deemed offensive, but they also labeled them “fighting words” and arrested the person who posted them.

Thomas Smith posted disparaging comments about the Arena Police Department on their Facebook page laced with profanity.  Eventually, he was arrested for disorderly conduct and unlawful use of computerized communications, tried and convicted.  However, his case was overturned on appeal in 2014. 

Mr. Smith then filed a civil rights suit against the Arena Police Department alleging a violation of his First Amendment right to free speech.  In September of 2015, the case was settled out of court for $35,000.

Case Study #3 – San Diego County Sheriff’s Department

There is a more recent case worth taking a look at as well.  In October of 2014, Dmitri Karras sued San Diego County after his combative comments were removed from the San Diego County Sheriff’s Office Facebook page.  Karras alleged a First Amendment rights violation asserting the Facebook page was a public forum.

A public outpouring of support for Mr. Karras flooded the San Diego Sheriff’s Office Facebook page with negative and sometimes profane comments, which ultimately resulted in the Facebook page being permanently deleted by the department.

In February 2015, the case was settled.  While admitting no fault, San Diego County agreed to pay $23,000 in attorney’s fees and pay Mr. Karras $20.  Karras was quoted as saying the lawsuit was not about the money.  Instead, it was about the First Amendment and citizen’s right to free speech.

Since the lawsuit was settled, Mr. Karras has continued to make similar comments to what he made on the San Diego Sheriff’s Office Facebook page on the San Diego Police Department’s Facebook page as well as the Fullerton Police Department’s Facebook page. 

The Fullerton Police Department removed his comments and he is threatening to sue them while the San Diego Police Department threatened to remove his comments but backed off after Mr. Karras said he would sue them.

Add Your Terms of Use Policy

This is a sensitive topic and one that must be handled with the utmost care or your governmental entity may face a First Amendment lawsuit.  Although cases like the ones mentioned above have been settled prior to reaching an outcome with the court, I believe there are certain guidelines which, if followed, will mitigate the agency’s risk.

The government in general and law enforcement specifically is being attacked and there are many individuals like Mr. Karras, in the case against San Diego County, which is lashing out and seeking an incorrect response from the government so they can file a lawsuit.  As a result, it is important to protect your agency to the greatest extent possible.

As mentioned previously, the best way to protect your agency is to clearly establish that your Facebook page and any other platforms which allow comments is a Limited Public Forum and outline your terms of use. 

I recently checked for the Terms of Use on dozens of law enforcement Facebook pages.  I was shocked to find that 90% of the ones I checked did not have any Terms of Use listed on the page.  For the departments that did have them, they were often hidden or difficult to find.  Your Terms of Use should be visible on the first row of tabs on your Facebook page.

Get Your Free Custom Terms of Use 

LawEnforcement.Social took my article one step further and has drafted a solid Social Media Terms of Use Policy to span across an agency's entire social media program. As with all legal documents, it is our recommendation you have this document reviewed either by your administration or counsel to ensure it meets any special requirements or conditions of your department. Neither I or LawEnforcement.Social are attorneys and we are not giving legal advice.

Go to LawEnforcement.Social/TOU to create your Social Media Terms of Use Policy right now.

Where To Post It

In addition to posting it on the various platforms, you may want to consider posting this policy on your department's website. Once you do, create a shortened link using a service like Bit.ly, to the website's page. Now, whenever you need to mention your policy in admonishments to commentators or want to add a reference to policy in your social media profiles, you can simply paste that shortened link.

This will help whenever you update the policy as well. By having all platforms "targeting" back to your website for the policy, you only need to change it at one location, to affect all platforms.

Watch This Episode

So What Can and Can’t Be Censored?

A practice to help mitigate your risk in this area is to not remove posts that are critical of your agency.  You need to develop some thick skin if you are going to engage your community on social media and provide opportunities for feedback.

Remember, you cannot discriminate based on viewpoint.

As we mentioned at the top of the article, you can restrict profanity, hate speech, threats, commercial posts or off-topic posts, so long as you have this specified in your terms of use

Hiding Versus Deleting

Lastly, I recommend that you hide posts rather than delete them if the comments violate your terms of use.  You may want to capture the image before you hide it as well in case you need to easily retrieve it at some future point in time should Facebook lose the data.  In addition, many governmental entities are using Archive Social to capture all of their social media content.  It is easy to use and searchable.  You can retrieve all of your past and current content.

A Standard Response

When discussing this article with Mike Bires from LawEnforcement.Social, he shared with me the following practice he uses at his police department.

Mike has his Facebook page’s profanity filter turned on, which blocks 99% of all vulgar comments (hey, people are inventing new ones all the time, so getting to 100% is difficult!). When he sees a comment has been blocked, he posts the following response to the hidden comment:

John Doe – Thank you for supporting the XYZ Police Department here on Facebook. While we encourage and respect everyone’s right to free speech, your comment was automatically hidden due to Facebook’s Page Monitoring feature we have enabled on our page. This feature is triggered whenever a comment violates our posted Terms of Use, such as the use of profanity, hate speech, threats, the proliferation of crimes, commercial posts or off-topic posts. The filter is not triggered based off of viewpoint or personal opinions. You are more than welcome to repost your comment, providing the comment conforms to our terms of use. You can view our Terms of Use policy by clicking on the Terms of Use tab at the top of our Facebook page, or you can go view it on our website. Thank you in advance for your understanding.


TIP: Paste the above admonishment in your Facebook Messenger Saved Replies folder, so you and all members of your team will issue the same, uniformed response for all violators. To access your Saved Replies Folder, click on the Messages tab on your Facebook page. Scroll to the bottom right of the page, and click on the comment icon. From there, you can create a new reply. Now when you need to respond to a person who posted a bad comment, you can come to this folder, copy the text, and paste it into the reply field of the original comment.


By posting this comment, Mike shows his agency is transparent and willing to accept people’s viewpoints and personal opinions, just not in a manner which violates the terms of use.

Allowing comments to remain on your agency's Facebook page is appropriate and the best practice.  Yet, those comments can’t be made without certain restrictions.  Your agency must publicly post their Terms of Use for the department Facebook page so your visitors understand the rules, those administering your Facebook page understand their responsibility and the department’s overall liability will be reduced.  

Speaking of Obscene Language and Page Moderation

Want an easy solution to adding obscene language to the moderation filter found on Facebook and some of the other platforms? Click the link below to document our Obscene Language text file. Just copy-and-paste into the platform, and you're good to go!

pdfClick here to download Obscene Language list

 

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