Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s Burning Question: Our volunteer fire department has our own Facebook page and the fire-police have a page they created on their own. We have no social media policy and there is nothing about it in our by-laws.
Our social media committee is trying to take away the fire-police page. Please correct me if I am wrong, but doesn’t the Facebook page belong to the creators, not the fire department? In other words, the fire department cannot make the fire-police get rid of the page, can they?
Answer: Determining the legal ownership of a Facebook page is not going to answer your question. Facebook may indeed consider the creators of the page to be the lawful owners, but the more important question is whether the fire department can limit the fire-police from posting in social media in a way that associates itself with the fire department.
To answer that question, we would need more information. The first question: Are the members of the fire-police part of the fire department or they part of a separate entity? If a separate entity controls the fire-police, the fire department’s ability to control the fire-police social media activities will be a function of the political and administrative leverage that can be brought to bear. Based on your question, I am going to assume the fire-police are part of the fire department, subject to the fire department’s chain of command, and hence subject to the fire department’s policies.
The next question, and perhaps the most important determination that must be made, is whether the fire department is a governmental entity. If it is, then the fire department must respect the First Amendment rights of members of the fire-police. If not, the problem is much easier to solve.
If the fire department is not considered to be a governmental entity then there is no 1st Amendment issue with stopping members of the fire company from sharing fire company information. The fire department leadership would simply have to do it in accordance with its bylaws, charter and state law.
If the fire department is governmental entity, or due to its close connection to a governmental entity is considered to be a “state actor” for purposes of the 1st Amendment, it still has the right to control members from holding themselves out in social media to be a “spokesperson” for the department. While members (including fire-police members) may have a 1st Amendment right to speak as a private citizen on matters of public concern – they do not have a right to hold themselves out to the public as an official source of information for the department. That is where your social media policy comes into play.
It is essential that a governmental agency’s social media policy is drafted in a way that respects the First Amendment rights of its members (whether firefighters or fire-police). Careful wording of the policy is required. Given the number of poorly worded policies out there, adopting another fire department’s policy could be inviting a trip to federal court should the fire-police decide to challenge it. However, if done properly the department can control the fire police social media activities so long as it does so in a manner that is consistent with the First Amendment.
We cover these issues and more in the upcoming webinar: Drafting And Implementing An Effective Social Media Policy. Please join us.
September 23, 2020 – WEBINAR
$50 per person
