By Cambria Smith, Best Best & Krieger.

In perhaps the next battleground for government and education, citizens who comment on social media sites are facing off with local government officials public and school administrators who find their online expression offensive or defamatory.

A Minnesota high school senior was suspended and threatened with expulsion after he jokingly commented on a website that he had a romantic affair with a teacher at his school. The teen was asked on a website whether he had “made out” with a teacher and he posted a sarcastic response: “Actually, yeah.” The student admitted his untruthful post was a mistake and apologized to the teacher, but a furor erupted at the school and in the community, ultimately causing the teen to transfer schools. The student has filed a federal lawsuit naming the school principal and district superintendent and alleging violation of his First Amendment rights. The suit also accuses the local police chief of defamation for the chief’s statement that the student’s posting was “a crime” with potential felony charges.

In another case, a 6th grade girl posted disparaging comments on her Facebook page, neither during school hours nor from a school computer, about not liking a teacher’s aide. The student received a detention for her comments, was required to write a letter of apology and was also accused of having explicit conversations with a male classmate on Facebook. The student sued for First Amendment free speech violations and alleged that school officials interrogated her and forced her to give up her Facebook password in response to complaints of explicit Facebook exchanges. The school district has agreed to pay $70,000 to settle the case, while not admitting any wrongdoing. But the district has updated its policies regarding the search of devices and social media accounts and will exercise more caution before punishing students for their off-campus statements.

Schools are not the only place where social media and online defamation are damaging reputations and distressing public officials. Local governments are confronting the same problem. In Illinois, a man created a satirical Twitter account spoofing the Peoria mayor and portraying him as a foul-mouthed politician with a taste for alcohol, drugs and prostitutes. The mayor and the city manager demanded a police investigation into the man’s identity, subpoenaed Twitter to turn over the man’s IP address and suspend his account, and searched the house where the man lived for any electronics capable of sending the offensive tweets. In response, the man has filed a lawsuit. He claims that city officials violated his First and Fourth Amendment rights by stifling his political parody speech and conducting an unreasonable raid of his home.

In Virginia, a sheriff at a local sheriff’s office was up for re-election in 2009, when several of his employees expressed support for the sheriff’s opponent in the upcoming election by “liking” the opponent’s Facebook page, which simply involves clicking a button on the opponent’s Facebook webpage. The sheriff fired six employees for “liking” the political opponent’s Facebook page. A sheriff’s deputy led the fired employees in a lawsuit against the sheriff, but the United States District Court judge hearing the case initially found that free-speech protections do not apply where no actual statement is involved. In 2013, a decision from the Fourth Circuit United States Court of Appeals reversed. That court found that “liking” something on a social network was the Internet equivalent of displaying a political sign in one’s front yard. Many courts now agree that clicking a button to like something is free speech and merits protection under the First Amendment.

In this emerging and murky area of the law, government and school officials may not feel able to await court decisions regarding many unanswered questions. Fortunately, there are practical tips public agencies can follow to avoid the pitfalls that these officials have encountered in the realm of social media, free expression and defamation.

  • Be willing and ready to tolerate criticism or irritating comments. To reap the benefits of social media for your agency, you also will have to learn to put up with adverse comments or critiques. Many online users understand that comments reflect the opinion of just one person and will take negative feedback with a grain of salt.
  • React positively and responsibly to false comments. Rather than immediately taking the defensive and suing in response to every false statement about your agency online, try to be constructive. Combat falsehoods with statements that will enhance constituent satisfaction and portray confidence in your services, not with lawsuits.
  • Consider if a defamation action is beneficial and be selective. Because the law favors free speech, defamation cases are hard to win with their heightened burdens of proof for plaintiffs. Truth is a defense to defamation, so be prepared for a full exploration of what the truth is. Litigation can last years and quickly drain resources, which may not be worthwhile if suing brings your agency bad publicity or gives needless attention to negative comments.
  • Utilize the administrative procedures of online media. Online and social media platforms have their own internal guidelines or rules for users. Some terms of use may allow statements that are clearly false or show animus to be taken down by administrative procedures at the host website. This technique can both remove negative content and show other users that such statements are not tolerated.

The examples in this article represent a growing national trend of social media and freedom of expression issues confronting local officials. Public officials need to take these issues seriously, particularly given the public pressure to eliminate threats and bullying online. But unfamiliarity with new technology may cause government and school officials to blow social media activity out of proportion and respond too harshly, too quickly. We expect cases like these to become increasingly prominent as the courts grapple with the limits of free speech in the online forum.

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Smith_CambriaCambria C. Smith is an associate in the Municipal Law practice group of Best Best & Krieger LLP. She provides a range of legal services to municipal and public entity clients and also works with school districts in the field of education law. Ms. Smith can be reached at