MH Resignation Prompts Questions about Local Governments and Social Media Policies
(Crystal A. Proxmire, Oct. 4, 2021)
Madison Heights, MI – A new social media policy implemented by Madison Heights City Council prompted the resignation of Kymberligh Clark, which was accepted at a Sept. 30 special meeting. At that meeting Council also declared the seat vacant, and is anticipated to appoint Sean Fleming to the seat.
Madison Heights City Charter requires that the seat go to the runner-up of the most recent election. Fleming would hold the seat until the 2023 election.
The policy sets rules for council members in how they engage on social media. The rules were adopted 5-2 with Clark and Emily Rohrbach voting no. Clark is active on social media, telling Oakland County Times that she is an admin on an estimated 50 groups, including Madison Heights Neighborhood Forum, which as 2.8k members, as well as Madison Heights Food Pantry, and Madison Heights Roller Club.
Like many individuals, particularly those in a public role, Clark has faced stalking and harassment online. And, in line with social media’s policies, Clark has protected herself by blocking people on her personal page and her personally-run groups. She has also been vocal about topics that are important to her, both within the city and otherwise. But the new policy would muzzle that activism and force her to forego the protections that websites like Facebook and Twitter offer users in terms of blocking.
The policy has several provisions, including:
~Any social media account that a Councilmember utilized for engaging with constituents or discussing matters related to City business will not restrict access in any capacity to the public, including blocking or banning people.
~Councilmembers shall be mindful of the risks of social media communications in regard to Michigan’s Open Meeting Act and communication between members of the body on social media whether directly between one another or as part of a controversial thread among multiple parties should be strictly avoided.
~Councilmembers shall conduct themselves on social media with the same professionalism and decorum as if they were communicating with the public while attending a Council meeting.
~If a Councilmember makes a mistake or error in communication, it shall be corrected as soon as the official is made aware of it.
The policy does not list a specific enforcement mechanism, only to say that “A Councilmember may be censored by the body for violations of this Social Media Policy.”
Just prior to the vote, several residents gave statements about Clark banning them from her Facebook groups. However, Mayor Roslyn Grafstein said that the policy was not aimed at any particular council member.
“Council has been discussing a social media policy since we had a public meeting about it last year with the MML [Michigan Municipal League] attorney. As with any policy, City Council and staff always put the well-being of residents and what is best for the city first and foremost and I am proud of all we have accomplished. This policy we passed on Monday was not intended to target anyone, but to ensure that no member of council engages in viewpoint discrimination,” Grafstein said.
The Michigan Municipal League is an organization that helps local governments with advocacy and education. They have done education with cities about social media policies for employees using official social media accounts. Their website lists sample social media policies from other cities, however none of those restrict the personal accounts of individuals other than reminding them to be mindful of the Open Meetings Act. OMA concerns occur when multiple officials deliberate about topics prior to a vote, which includes electronic communications. It does not, however, prevent officials from having or sharing opinions or information.
When asked what MML advises their members, Communications Director Matt Bach told Oakland County Times “The Michigan Municipal League’s social media guidance has two major tenants. First, personal pages should represent their own individual opinions and should not appear to speak for the elected body as a whole. And second, when using social media, elected officials should not engage with their fellow elected officials in a way that could be construed as deliberation toward a decision. The League offers this guidance as a point of consideration for members. “
Sample social media polices listed on the MML website include Berkley, Troy, Novi, and others which set standards for city-owned social media accounts, but does not include or limit the personal accounts of officials.
The City of Birmingham has a policy for those who comment on city-owned social media pages. “Those of us who are coordinating the Facebook, Twitter and other social media pages believe deeply in free speech. Given our role in offering this service and our presence together as part of the community, however, we must reserve the right to remove certain comments that you may post. As a general matter, you may post comments freely to Facebook and Twitter pages, and to those of others, so long as the comments are not illegal, obscene, defamatory, threatening, infringing of intellectual property rights, invasive of privacy or otherwise injurious or objectionable. You may not use the City of Birmingham name to endorse or promote any political opinions, political causes or political candidates.” The policy does not set specific rules for officials or address their personal accounts.
The City of Madison Heights itself also has a Social Media Policy included on the MML website that outlines the rules for City-owned social media. This policy did not address officials and their personal pages or groups. However, unlike the policy imposed on city officials, the policy does include protections for the City in terms of the ability to remove harassing or inappropriate posts and comments.
“A comment posted by a member of the public on any City social media site is the opinion of the commentator or poster only, and publication of a comment does not imply endorsement of, or agreement by, the City of Madison Heights, nor do such comments necessarily reflect the opinions or polices of the City of Madison Heights,” the policy states. “The City reserves the right to deny access to City social media sites for any individual who violates the City of Madison Heights’s Social Media Policy, at any time and without prior notice.”
Gerald Fischer, Local government law consultant and emeritus professor of law at WMU Cooley Law School, reviewed the latest policy at the request of Oakland County Times. He noted several reasons why the policy is problematic:
~The right to free and uninhibited speech, especially political speech, is a powerful liberty protected by the First Amendment to the United States Constitution. In order to obstruct political speech, a local government must meet two tests: (1) it must be attempting to achieve a “compelling public interest” of the City; and (2) the policy adopted for this purpose must establish the “least restrictive means” for achieving the compelling public interest. The policy you have sent to me falls short of meeting either of these very difficult tests.
~First, the policy restricts elected officials in the manner in which they communicate city issues with constituents and other members of the public. This would, for example, restrict the manner in which an official would discuss city issues and potential solutions to those issues. These are high level First Amendment rights.
~Social media has become a principal means by which people communicate with others. By restricting or prohibiting the use of this important means of communicating about public business is, again, a major first amendment violation unless the two tests outlined above are met.
~The policy also compels elected officials to affirmatively communicate in a specific manner, namely correcting errors in a timely manner. Of course, whether an error has been committed may be a matter of opinion. In addition, the Constitution has great trouble with the idea of compelling anyone to make particular statements.
The issue is still being worked out by the courts. In the 2018 lawsuit Knight First Amendment Inst. at Columbia Univ. v. Trump, seven citizens sued President Donald Trump for blocking them on Twitter. The case is working its way through the appeal process.
According to the American Bar Association, “The court ruled that President Trump’s Twitter feed constitutes a designated public forum… In blocking individual users, President Trump engaged in unconstitutional viewpoint discrimination, and the court ordered the president to unblock the users who filed suit.” Trump argued that the account was his personal account, however his attorneys stipulated that he had been using his private account for official business, which opened the door to the violations.
“If Knight is upheld on appeal, it will provide important guidance for politicians to determine when Twitter is a public or private forum. For politicians who use their personal account as their Twitter for their office, they must take note of how they can interact with constituents without engaging in viewpoint discrimination. Knight takes care to differentiate between the different options a politician can use to interact with citizens they find offensive or who “troll” the official.
“Judge Buchwald made it clear that an official may mute an individual account. She likened this to a public official merely ignoring the voice of a constituent. A citizen has a right to petition the government, or a government official, but the official also has the right not to engage with that individual. If President Trump had merely muted the plaintiffs in Knight, there would have been no First Amendment violation. The plaintiffs would’ve been able to interact with President Trump’s interactive space on Twitter, but President Trump just would not have seen those messages. Any public official may face the same issue, but their solution can be to just mute the offensive account rather than block it.”
One challenge is what to do if muting is not an option, such as Facebook which allows blocking, but not muting on personal pages, and has different privacy settings for posts and groups. Also in question, for the courts to work through, is whether having separate personal and official pages is sufficient to create the distinction between public and private if the person posts about their city on their personal accounts.
The ABA article concludes by stating “The debate over what constitutes a public forum on social media websites will not end with this case. There will almost certainly be more cases involving Twitter and Facebook and Instagram that could also constitute a designated public forum under circumstances similar to the reasoning of Knight. The continued expansion of the Internet as a means of communication will continue to force the courts into examining traditional doctrines considering how the American people communicate over the Internet.”
When asked for more information about the decision-making that went into the policy, City Manager Melissa Marsh told Oakland County Times, “City Council has a detailed legal opinion which is not public.” The policy was written by City Attorney Larry Sherman, and will be reviewed in six months or as changes in the law occur.
Clark told Oakland County Times that she is speaking with a Civil Rights Attorney in regard to the situation. As far as her future in the community, Clark says she plans on staying active.
“Of course I would love to sit on City Council for four years and make big changes, but it’s clear that the current city council isn’t really for those changes. So I’m going to join back into the community… working on issues like code enforcement, housing and food insecurity. I’m going to keep working on the things I came here to do. I don’t need to be sitting in that seat to do it,” Clark said.
Michigan Municipal League resources on Social Media
Examples of Governmental Social Media Savvy (Nov. 7, 2019)
2021 Candidate Interviews