Deleting Derogatory Facebook Postings

Today’s burning question: I’m the administrator for my fire department’s Facebook Page. Recently someone has been posting derogatory comments about the fire department and our fire board. Can I block this person from our Facebook page, or at least hide the comments from public view?

Answer: Your questions gets us right into the heart of a very difficult and complicated dilemma involving the 1st Amendment and Free Speech. Government cannot censor members of the public. Government censorship violates the 1st Amendment. To the extent that a web site is owned by government or is used to carry on the public’s business, the folks who manage it need to be mindful that they are governmental agents who have a legal responsibility to respect the 1st Amendment.

While government cannot violate the 1st Amendment Rights of folks who may want to post on their web site, government does not have to tolerate everything that people may want to post. Drawing the line between what can and cannot be posted (or what can or cannot be deleted) is the problem.

Best practice is for governmental agencies who have a web presence such as a Facebook page to have a clear policy about the kinds of posts that will not be tolerated. Such policies (often referred to as moderation policies) commonly prohibit the posting of pornographic content, use of profanity, threats, encouraging illegal activities, promoting violence, use of racial/ethnic slurs, advertising, posting spam, etc.

Prohibiting such conduct because it violates the moderation policy has to be distinguished from prohibiting content based on what the poster is saying. Deleting a post because the fire chief or firefighters disagree with it or because they feel it disparages the department or its agents/employees – will likely be a violation of the First Amendment. It is a form of censorship. Blocking someone because their posts are deemed to be disparaging to the department would also be a form a censorship. So would hiding their posts.

A great deal of thought and research needs to go into a fire department’s online moderation policy. Legal counsel must be involved. The policy should be posted on the web site if possible or made readily available to anyone who asks for a copy. It should be followed consistently by those responsible for monitoring the web site. If/when a challenge arises legal counsel should be consulted immediately. The policy may need to be evaluated and perhaps updated if the challenge is upheld.

Lastly… there likely will be public records concerns with all web postings on a fire department’s web site. As such, it is important to ensure that all posts – even those that are removed for violating the web site’s moderation policy, have been archived as part of the department’s efforts to comply with public records requirements.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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