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I received this Digital Citizen Engagement Dilemma from a local government agency.  Can folks help them out?

"We were strongly advised by our Legal Team that there are serious First Amendment/Freedom of Speech ramifications from allowing any person to place information, content of any kind including text, images or photos, on government websites. Their legal advice is that if a government entity allows the public to post content, any resulting public content or commentary may not, in any way, be moderated. This includes moderation such as hiding/deleting posts with offensive language and/or other forms of inappropriate content. They argue that a civil rights violation lawsuit based on any moderation or limitation to such content by a government agency is legally indefensible.

Additionally, it has been said that laws regarding moderation in a traditional government public forum or open meeting are completely different than the laws governing an open forum held on a government website. So moderation that is permitted in the physical world would not be online.

As a result of the Legal Team’s advice, all interactive applications such as public commentary on news & events, posting on blogs & discussion forms, discussions with government subject matter experts, open public dialogue, and photo submissions, etc. have been removed from our agency’s website.

Where do we go from here? Has anyone else dealt with these issues? What are your thoughts?

The issue is specifically with interactivity on the agency website (not social media channels where it is allowed)

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Morris County NJ leaves all public commentary to social media channels.  None of our sites, including pages we do with Blogger, allow public input.  We stay completely clear of any advertising, forums, on our sites.  There are only two possible non-governmental inputs on our sites: our feedback forms and a non-profit calendar that we created for Human Services.  Feedback form data is not live on our sites and the calendar entries are all screened and approved before being made available to the public.  

Personally, I think there are sufficient avenues for public commentary in social media channels. We use Flickr.com for all our photos, YouTube and Vimeo for our videos, and extensively use Twitter & FB.

When I teach policy development, I always tell folks that the policies are for the lawyers.  They're the ones who have to use them in defending the actions we take.  Unless I could find compelling evidence to the contrary, if our county counsel said something we were about to do online was indefensible, I would follow his advice and not do it.

Thanks, Carol!

Is there any way to make public interaction directly on government websites more legally palatable to the lawyers? It seems to me that the web is moving in that direction. What citizens / customers experience on social sites, they will expect on organizational sites, yes?

Suggest the person sending in the question refer Agency counsel to the links below. Sometimes they are just not familiar with social media.

Links

FEMA Comment Policy

http://blog.fema.gov/p/blog-disclaimers-policies.html

EPA Comment Policy:

http://blog.epa.gov/blog/comment-policy/

TSA Comment Policy:

http://blog.tsa.gov/2008/01/comment-policy.html

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TSA Comment Policy (Blog)

Comment Policy

The purpose of this blog is to facilitate an ongoing dialogue on innovations in security, technology and the checkpoint screening process. We encourage your comments; your ideas and concerns are important to ensure that a broad range of travelers are active and informed participants in the discussion. TSA reserves the right to modify this policy at any time.

This is a moderated blog, and TSA retains the discretion to determine which comments it will post and which it will not. That means all comments will be reviewed before posting. In addition, we expect that participants will treat each other, as well as our agency and our employees, with respect. We will not post comments that contain vulgar or abusive language; personal attacks of any kind; or offensive terms that target specific ethnic or racial groups. We will not post comments that are spam, are clearly "off topic" or that promote services or products. Comments that make unsupported accusations will also not be posted. Off topic comments can be posted in our "Off Topic" post as long as... 

Any references to commercial entities, products, services, or other nongovernmental organizations or individuals that remain on the site are provided solely for the information of individuals using this blog. These references are not intended to reflect the opinion of TSA, DHS, the United States, or its officers or employees concerning the significance, priority, or importance to be given the referenced entity, product, service, or organization. Such references are not an official or personal endorsement of any product, person, or service, and may not be quoted or reproduced for the purpose of stating or implying TSA endorsement or approval of any product, person, or service.

What This Blog Is Not
  • This blog is not to be used to report criminal activity. If you have information for law enforcement, please contact your local police agency.
  • Do not send in questions or status inquiries about your specific case involving TSA. Instead, contact TSA directly via our main website.
  • This is a place for collecting suggestions and new ideas, not a substitute channel for DHS services or general questions. See "Contact Us" on www.dhs.gov, to get help from the Department and components.
  • Do not submit unsolicited proposals, or other business ideas or inquiries to this blog. This site is not to be used for contracting or commercial business.
  • This blog may not be used for the submission of any claim, demand, informal or formal complaint, or any other form of legal and/or administrative notice or process, or for the exhaustion of any legal and/or administrative remedy.

TSA does not guarantee or warrant that any information posted by individuals on this blog is correct, and disclaims any liability for any loss or damage resulting from reliance on any such information. TSA may not be able to verify, does not warrant or guarantee, and assumes no liability for anything posted on this website by any other person. TSA does not endorse, support or otherwise promote any private or commercial entity or the information, products or services contained on those Web sites that may be reached through links on our Web site.

Members of the media are asked to send questions to the Office of Public Affairs through their normal channels and to refrain from submitting questions here as comments. Reporter questions will not be posted.

We recognize that the Web is a 24/7 medium, and your comments are welcome at any time. However, given the need to manage federal resources, moderating and posting of comments will occur during regular business hours Monday through Friday. Comments submitted after hours or on weekends will be read and posted as early as possible; in most cases, this means the next business day.

For the benefit of robust discussion, we ask that comments remain "on-topic." This means that comments will be posted only as it relates to the topic that is being discussed within the blog post. The views expressed on the site by non-federal commentators do not necessarily reflect the official views of the Transportation Security Administration or the Federal Government.

To protect your own privacy and the privacy of others, please do not include personally identifiable information, such as name, Social Security number, phone numbers or email addresses in the body of your comment. If you do voluntarily include personally identifiable information in your comment, such as your name, that comment may or may not be posted on the Blog. If your comment is posted, your name will not be redacted or removed. In no circumstances will comments be posted that contain Social Security numbers, addresses, email address or phone numbers. You have the option of posting comments anonymously, but if you opt not to, any information, including your login name, may be displayed on our site.

Thank you for taking the time to read this comment policy. We encourage your participation in our discussion and look forward to an active exchange of ideas.

Privacy Act Statement
Authority: 49 U.S.C. §114(f). Purpose: TSA will use this information to promote communication between the Administrator of the Transportation Security Administration, the traveling public, and throughout the TSA community. Routine Uses: TSA may share the information provided by members of the public with facility operators, law enforcement, intelligence agencies, or other government agencies as necessary to respond to potential or actual threats to transportation and national security, or pursuant to its published Privacy Act system of records notice DHS/TSA 006, Correspondence and Matters Tracking Records (CMTR), 68 FR 49503-49504. Disclosure:Furnishing this information is voluntary.
 

EPA Comment Policy (Blog)

We encourage you to share your thoughts as they relate to the topic being discussed.  We review and post comments according to the policy below.  The views expressed in comments reflect those of the author and do not necessarily reflect the official views of the U.S. Environmental Protection Agency or the federal government.

We want to publish your comments, but we expect comments generally to be courteous.  To that end, we have established the following policy.

We reserve the discretion not to post comments that:

  • contain obscene, indecent, or profane language;
  • contain threats or defamatory statements;
  • contain hate speech directed at race, color, sex, sexual orientation, national origin, ethnicity, age, religion, or disability; or
  • promote or endorse services or products. (Note that non-commercial links that are relevant to the topic or another comment are acceptable.)

Do not submit copyrighted or other proprietary material in any form unless you clearly indicate that you have permission to do so.  By posting your comments or other work, you grant EPA and anyone viewing the EPA Web site irrevocable permission to copy, distribute, make derivatives, display or perform the commenter’s work publicly and free-of-charge.

If you are a reporter, please send questions to the EPA Newsroom through normal channels rather than by submitting questions here as comments.

We recognize that the Internet is a 24/7 medium and your comments are welcome at any time.  However, given the need to manage federal resources, we intend to review and post comments from 8:30 am – 5:30 pm Monday through Friday except for on federal holidays.  We intend to review and post comments submitted at other times as soon as possible on the next business day.

In some cases we ask you to provide your name and e-mail address, although providing either is optional.  We request your name to make it easier to carry on a conversation.  For this reason, we publish your name along with your comment.  We ask for your e-mail address so that we can contact you if necessary.  It is our policy not to publish your e-mail address.

To protect your privacy, please do not include information (e.g., an e-mail address or phone number) in the text of your comment that identifies you.

You can find additional guidance as to how EPA regards privacy issues within the privacy policy provided on EPA’s main Web site.

Thank you for taking the time to read this comment policy.  We encourage your participation in our discussion and look forward to an active exchange of ideas.

If you have questions about this comment policy or how we apply it, please contact us.

FEMA Comment Policy (Blog)

The purpose of this blog is to facilitate an ongoing dialogue on Emergency Management. We encourage your comments; your ideas and concerns are important to ensure that a broad range of individuals are active and informed participants in the discussion. FEMA reserves the right to modify this policy at any time.

This is a moderated blog. That means all comments will be reviewed before posting. In addition, we expect that participants will treat each other, as well as our agency and our employees, with respect. We will not post comments that contain abusive or vulgar language, spam, hate speech, personal attacks, or similar content. We will not post comments that are spam, are clearly "off topic" or that promote services or products or contain any links. Comments that make unsupported accusations will also not be posted. 

Any references to commercial entities, products, services, or other nongovernmental organizations or individuals that remain on the site are provided solely for the information of individuals using this page. These references are not intended to reflect the opinion of FEMA, DHS, the United States, or its officers or employees concerning the significance, priority, or importance to be given the referenced entity, product, service, or organization. Such references are not an official or personal endorsement of any product, person, or service, and may not be quoted or reproduced for the purpose of stating or implying FEMA endorsement or approval of any product, person, or service. 


What This Blog Is Not
  • This blog is not to be used to report criminal activity. If you have information for law enforcement, please contact your local police agency.
  • A place to report fraud. Persons alleging FEMA benefits fraud should report complaints directly to the National Center for Disaster Fraud Hotline @ 866/720-5721 or via email at disaster@leo.gov.  Allegations of (non-FEMA) identity theft and related financial fraud should be reported to the U.S. Secret Service, the local police, associated credit card companies and/or financial institutions.
  • Do not send in questions or status inquiries about your specific case involving FEMA. Instead, contact FEMA directly via our main website.
  • This is a place for collecting suggestions and new ideas, not a substitute channel for DHS services or general questions. See "Contact Us" on www.dhs.gov, to get help from the Department and components.
  • Do not submit unsolicited proposals, or other business ideas or inquiries to this blog. This site is not to be used for contracting or commercial business.
  • This blog may not be used for the submission of any claim, demand, informal or formal complaint, or any other form of legal and/or administrative notice or process, or for the exhaustion of any legal and/or administrative remedy.
FEMA does not guarantee or warrant that any information posted by individuals on this blog is correct, and disclaims any liability for any loss or damage resulting from reliance on any such information. FEMA may not be able to verify, does not warrant or guarantee, and assumes no liability for anything posted on this website by any other person. FEMA does not endorse, support or otherwise promote any private or commercial entity or the information, products or services contained on those websites that may be reached through links on our website.

Members of the media are asked to send questions to the External Affairs through their normal channels and to refrain from submitting questions here as comments. Reporter questions will not be posted.

We recognize that the Web is a 24/7 medium, and your comments are welcome at any time. However, given the need to manage federal resources, moderating and posting of comments will occur during regular business hours Monday through Friday. Comments submitted after hours or on weekends will be read and posted as early as possible; in most cases, this means the next business day.

For the benefit of robust discussion, we ask that comments remain "on-topic." This means that comments will be posted only as it relates to the topic that is being discussed within the blog post. The views expressed on the site by non-federal commentators do not necessarily reflect the official views of the Federal Emergency Management Agency or the Federal Government.

To protect your own privacy and the privacy of others, please do not include personally identifiable information, such as name, Social Security number, FEMA Case numbers, NFIP account numbers, phone numbers or email addresses in the body of your comment. If you do voluntarily include personally identifiable information in your comment, such as your name, that comment may or may not be posted on the page. If your comment is posted, your name will not be redacted or removed. In no circumstances will comments be posted that contain Social Security numbers, FEMA case numbers, addresses, email address or phone numbers. The default for the posting of comments is “anonymous”, but if you opt not to, any information, including your login name, may be displayed on our site. 

Thank you for taking the time to read this comment policy. We encourage your participation in our discussion and look forward to an active exchange of ideas.

Dannielle -- Have any of these comment policies been tested in federal court?  Reading over them, I am not sure they would survive a First Amendment challenge from a good well financed legal team.  At the very least, the agency could be forced into a long expensive court case.  The decisions regarding what comments are on or off topic would open up many opportunities for FOIA requests.  Also, if the initial posts lean toward the self congratulatory and negative comments are too severely restricted, outside lawyers could question if the agency had crossed the line into prohibited public relations or puffery, with yet more FOIA requests.  I am seeing a great deal of material on government web sites, including federal, that could keep First Amendment lawyers employed for an entire career.  It is not a matter of if, but when, the challenges come.

Surely TSA comment policy should in plain English  under the Plain Writing Act.

Nick Wright

Designer of the StyleWriter - plain English editing software

Surely you could write this in plain English.  You should be doing so under the Plain Writing Act.

When I see a response like "shut it down" it seems like a CYA issue not a "protect free speech" issue.

Common sense: You don't cut off all commentary to "protect" the rights of commenters to make comments. Instead you strike a balance between free speech and the legitimate concerns that mediate against it.

My experience years ago when helping set up a social media program in 2008 was that Counsel was very concerned to do the right thing but that they were simply unfamiliar with issues unique to social media and there was insufficient resources - time, staffing, structure - to coordinate between all the experts.

In the end it seems the Federal agencies above found a balance between letting people comment while setting expectations and protecting the public sphere. There have to be limits on what you can put in the comment box - eg libel/slander/defamation, crime reporting (legitimate or fraudulent), code (there are Cybersecurity concerns), etc.

I would hope that in the near future a central interagency council would be established to guide Federal, state and local communicators for greater efficiency. Having multiple lawyers argue and disagree on basic stuff like this seems wasteful.

Going to court and losing is also wasteful.  Interagency councils and social media practices do not, cannot and should not override free speech rights written into the constitution.

When these policies are challanged in the courts, the two competeing models presented are likely to be the public meeting concept vs the written comment concept.  Courts have generally recognized the need to maintain order and allow maximum participation in public meetings requires those conducting the meetings to moderate discussions, prohibit profanity or fighting words and within reason limit discussion to germain topics.  Courts have been much less permissive regarding written comments.  They have tended to rule that all written comment submitted must be included in the record of comments and made available for public review in the same manner as every other comment.  In general, the courts have even tended to require government agencies to include in the public record comments that contain libel/slander/defamation etc.  The basic judicial view has been that paper is cheap, comments from the public do not represent or transfer liability to the agency and everyon who comments has a right for those comments to be recorded and reported.  The lower Courts may develop a new model for online comments; but it would be subject to appeal until confirmed by the Supreme Court. 

Government agencies also have to ask what level of budgetary resources they want to commit to defending their comment policy.  Lawyers do not come cheap.  Agency general counsols are already overworked.  Contracting for outside counsol eats into funds that could be used elsewhere.  Small government agencies, particularly in local government, simply may not have the financial resources for this type of fight even if they think they will prevail. 

Ultimately, multiple lawyers will argue and disagree about this because one person's basic stuff is another person's fundamental freedom.  How much time they argue in conference rooms in front of agency executives before the policy goes live could determine how much time they argue in court rooms in front of judges after it goes live.

Peter, what specifically are you disagreeing with in the comment policies? The concept of moderation (e.g. you see censorship), or a particular wording?  

Dannielle -- The language below, repeated in most comment policies, would easily pass consititutional review if the courts apply the public meeting model to agency blogs and would equally easily be rejected if they apply the written concept model. If the agency is going to moderate, the plaintives attorney will insist they justify that decision citing the specific harm which would be caused by allowing their clients comments to be shared on the blog. They will also insist that restrictions on some types of comments as opposed to others is discriminatory. They will argue strongly for the written comment model requiring all comments to be entered in the record and made available on an equal basis. The agencies attorney will argue that without moderation, the comments descend into an online shouting match and attempt to apply the public meeting model. The judge will most likely issue a two part decision favoring one model or the other and, if the public meeting model is favored, some sort of transparent process for determining which comments are posted and which are not. A process which would itself generate multiple opportunities for FOIA requests.

"This is a moderated blog, and TSA retains the discretion to determine which comments it will post and which it will not. That means all comments will be reviewed before posting. In addition, we expect that participants will treat each other, as well as our agency and our employees, with respect. We will not post comments that contain vulgar or abusive language; personal attacks of any kind; or offensive terms that target specific ethnic or racial groups. We will not post comments that are spam, are clearly "off topic" or that promote services or products. Comments that make unsupported accusations will also not be posted. Off topic comments can be posted in our "Off Topic" post as long as... "

One need only go to the DHS YouTube channel to see how moderation plays out on the ground. While I understand the theoretical concern about censorship, in reality Agencies are well aware that once you open the door to comments, you have to live with the comments. (NSFW)

TSA blog here allows comments, critical too:

http://blog.tsa.gov/2012/11/tsa-week-in-review-7-nonmetallic.html

DHS video allows comments, pretty nasty:

http://www.youtube.com/watch?v=u68lSmv8tUk&feature=plcp

TSA videos I randomly checked out do not (probably because they don't want to moderate all the angry responses):

http://www.youtube.com/watch?v=ZEC2omqDAAA&feature=context-chf&...

While I get the free speech concern, and understand that the model for blog comments is not necessarily clear (meeting or print) the "solution" of not allowing any comments at all does not seem optimal in this day and age.

I would agree that disallowing comments is not an optimal solution.  The better and more legally defensible alternative would be to allow them all.  Include the standard disclaimer about not endorsing their content; but let them spout off at will.  The one exception I would make, which I am confident would pass court review, would be to require the use of verifiable names by people who comment.  Essentially, use the same basic rules most federal state and local agencies have been applying to written comments for years. 

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