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)
There are a few challenges for "government websites". A big one is to not confuse government/agency policy with what private individuals may be posting. You don't want folks to be telling others "I saw on the <agency> web-forum that...", and then spew something untrue, salacious, or libellous.
Moreover, if the site is intended for cogent discussion, you don't want it to slide into the slime and then have to set up another website as a sort of "reset button". I'm no lawyer, but I suspect that is a part of what makes the moderation of letters to the editor, and on-line fora attached to newspapers, legally defensible. That is, the institution paying for the maintenance of the website should be able to reserve the right to preserve the reputation of the site and institution. The guidelines that Danielle posted earlier make eminent sense to me. One would hope that people using the site exhibit civil behaviour; civility not having ever been an obstacle to the purpose of freedom of speech.
Many sites include options for viewers to complain about, or report, objectionable posts, whereupon the moderator may delete the post if it conforms to some set of declared (as opposed to improvised) criteria. In such instances, it is not the institution acting unilaterally. But the criteria would need to be spelled out in advance, if only for purposes of transparency.
Mark -- The key difference in US law is government sponsorship. Privately owned print, broadcast or didgital media are free to edit, moderate or exclude as they please. Government agencies are required to provide their services, including access to comment in person, in print or online equally to all. Currently there are a few cases claiming local government agencies moderate some comments more agressively than others depending on the source and negativity of the comment. Private operators are free to do this. Any First Amendment or Equal Protection lawsuit against a private operator would be sumarrily dismissed and might even be referred to the ethics committee of the local bar association as frivilous. But government agencies at whatever level would face a much more serious challenge getting the case dismissed and might even lose in court. If public money is used to communicate, the government must either restrict the funded platform to official government communicators or make it available on an equal basis to all. Given the relatively low costs involved, I would just require people use their real names when they comment, let them post and clarify they speak only for themselves.
Thanks for that background, Peter. Very helpful. One should never confuse the laws of one jurisdiction with those of another.
Real full names can go a long ways towards civility in the on-line world. Given what you noted, though, would the requirement to use one's real name not also constitute a prohibitted restriction on rights similar to deleting posts that call someone a poopy-head or similarly derogatory? Or does the law permit that to be a requirement where the content of the post cannot be so constrained? IIRC, whistleblower protection laws permit disclosers of wrongdoing to retain enough anonymity to protect themselves against reprisal. So how could a government site declare that one has to register and post, using a verifiable name, yet still provide carte blanche for content? I'm not saying it couldn't happen; but the principle that would permit it isn't jumping off the page at me.
How hot or cold am I in this regard?
Chiming in on the requirement to use your real name. I think the public would perceive this as a means for government to track and punish people with opposing points of view.
Might I recommend, in addition to all the other resources commenters provided, checking out the HowTo.gov page? I'm assuming you are not a Federal agency, but the same laws apply. You'll have your engagement soon enough I imagine.