Should Municipalities Post Information About Non-Municipal Groups on Their Web Sites and Social Media Pages?
Jun 9, 2015 | Written by: | Share
Municipalities are increasingly using social media to convey messages about municipal events and emergencies to residents. In addition, many municipal governments recognize that they operate in a community and attempt to support that community by posting about non-municipal events and activities or local businesses. However, if a municipality does not have neutral guidelines in place to govern what non-municipal groups are featured on its website or social media sites, the municipality is subject to criticism that it is favoring certain groups or businesses over others. And criticism can often turn into a lawsuit.
Therefore, a municipality should have an application process whereby businesses or other community groups can be mentioned on the municipality’s website or social media pages. The municipality’s mention of a business or event can take the form of a listing on a local businesses page on the municipal website, a posting on Facebook or Tweet about a special event, or any other posting that a municipality can come up with.
The first steps are to develop an application process, designate a group to review such applications, and pass an ordinance governing the process. Instead of reinventing the wheel, municipalities can look to application or request processes already in place, such as those for banners on public streets or at municipal events. See Heartbeat of Ottawa Cty., Inc. v. City of Port Clinton, 207 F.Supp. 699 (2002) for a review of banner ordinances.
However, with the application scheme in place, the municipality can only limit a business or group’s inclusion with “reasonable and viewpoint neutral” restrictions. Id. Or, a municipality can restrict the inclusion of groups and business on their website and social media pages to those that participate in official municipal business. Putnam Pit, Inc. v. City of Cookeville, Tenn., 221 F.3d 834, 846 (6th Cir. 2000). However, this is a difficult standard for a municipality to develop and apply neutrally. The Sixth Circuit has held that a municipality’s policy to limit links allowed on municipal website to groups and organizations that “promote the city's tourism, industry, and economic welfare” gave too much discretion to officials and raised the possibility of discriminatory application. Id. at 845. New Jersey Courts and the Third Circuit have not cited this opinion nor have these Courts been presented with a similar question.
Therefore, a municipality must carefully tailor restrictions to be content neutral. Municipalities can limit links on the municipal website or social media pages to non-profit organizations. (New Jersey Courts have allowed a distinction between commercial and non-profit groups in peddler and solicitor ordinances. See New Jersey Environmental Federation v. Wayne Twp., Civ. No. 01-1586 (D.N.J. Mar 16, 2004)). The content of all social media posts mentioning non-municipal groups can be limited to events and to only contain the name of the organization, the name of the event, the date of the event, and a link to the event’s website. Links on the municipal website can be limited only to the name of the organization and a link to its website. Additionally, links to non-municipal groups could further be limited to only organizations and groups located within the municipality or serving residents of the municipality. All of these restrictions must be applied in a content-neutral manner and without regard for the message of the group or organization.
Of course, a municipality could deny the request for a link on the municipal website or social media pages in cases where such would implicate the protection of the public welfare, threats, offensive, racist or derogatory words. See e.g. Gitlow v. New York, 268 U.S. 652 (1925); Virginia v. Black, 538 U.S. 343 (2003); Denver Area Educ. Telecommunications Consortium, Inc. v. F.C.C., 518 U.S. 727 (1996)). Lastly, any mention of a non-municipal group on the municipality’s website or social media pages should be followed by a disclaimer that the views of the group are not those of the municipality and that clicking on the link will take you away from the municipal page and the municipality is not responsible for any content of that page.
Tara St. Angelo's primary areas of concentration are municipal and land use law. Contact Ms. St. Angelo at Gebhardt & Kiefer, PC at 908-735-5161 or via email.