First Amendment Lawsuit: Public Safety Admins, Before You Hit “Delete,” Read This.
- Kent Keller
- Oct 23
- 6 min read
Updated: Oct 28
Public officials are held to a higher standard than private business owners, and every action you take on your department’s social media can have real First Amendment implications. Before you block or delete a comment, make sure you understand the legal boundaries and best practices that protect both your agency and your community.
Image: KETV 7 Omaha Facebook page
I’m often asked by potential government clients I’m talking with as to why they really need a Public Information Officer (PIO) and Media Relations Manager. I could name a dozen reasons that directly benefit you as a leader and your agency.
But for the sake of brevity and to stay on track for this article, let me ask a question of my own. Are you considering case law, active cases in the Supreme Court, the constitution, and agency liability when you’re managing your online and social media presence? Because at OS Media Group…we are.
We have business clients that can do whatever they’d like as a privately held company. But if you are a public safety agency or government agency, you are not afforded those same liberties. And a case in my hometown recently highlighted the importance of having a knowledgeable media relations manager at the helm of your public service or government agency.
Omaha Mayor John Ewing Jr. is being sued for allegedly deleting a resident’s comments and blocking her from his official Facebook page. There is limited information about this case as it was just filed three days ago. But if you’re confused as to why that would warrant a lawsuit, please take a minute and keep reading…it could save your agency a big headache and a bigger lawsuit settlement.
I don’t like you. I don’t agree with your views. I did you dirty in a business deal, and don’t want you telling others on my page. All of these are acceptable reasons that I could block anybody from the OS Media Group online spaces. Legally, of course…the last one is morally wrong!
But as a public service agency, government agency, or official page of an elected government official, you cannot delete and get block happy when you see fit. Your actions have to fit a certain criterion, be defensible, and be documented. Otherwise, all you really did was violate one of your residents’ First Amendment rights…publicly…with a paper trail.
Now, we’re not attorneys, but even we could win that case against the government. Again, I know nothing of the specifics of this case, and that is why we have a justice system. But the resident alleges the Mayor and his office participated in “viewpoint-based discrimination.” How can you avoid (hopefully) getting sued, protect your residents’ constitutional rights, protect your community, and protect your agency? We thought you’d never ask!
“In an industry where consistent public trust and community relations are crucial elements to a successful police agency, OS Media Group excels in their ability to consistently utilize a wide variety of platforms and methods to communicate with our partners in informational, humorous and engaging ways. They’re a PR asset to any agency.”
Lieutenant Adam Smith, CSU Police Department (Ret.)
Here are some tips and things you can implement now, regardless of your agency budget. You can block people and delete comments on your public agency pages. There are just certain thresholds that must be met first. This isn’t an all-encompassing list, just some common examples we have seen that you can look out for.
Any comments that are “true and imminent” threats, overtly obscene, or are attempt to incite imminent violence/lawlessness are okay to be removed. This is according to the Supreme Court and the current review of two cases in California and Michigan: O’Connor-Ratcliff v. Garnier and Lindke v. Freed. The former case law revolves around a school board that blocked a resident who repeatedly made critical comments and is alleged to have violated the resident’s rights.
This is due to the page being used to discriminate against timely and useful information that the resident has a direct nexus (connection) to, due to their student being a part of that district. So an extreme counter would be an “internet troll” who lives in Texas, who comments on your pages that the residents should no longer abide by the directions of police at an upcoming public event.
Potential criminal charges aside. This comment clearly has no motive other than to incite violence and disorder. Deleting this comment would be best for the safety of the community and your officers. Blocking this person could also be warranted if this is a common practice. But how do you do that?
“As a reporter new to the Crime and Public Safety beat, Kent has been phenomenal to work with. He is always friendly and explains things in a way even I can understand and digest. He has been great about not only responding to my requests, but also being proactive in letting me know about incidents that may have missed my radar and interesting things the department has in the works."
Chris Bolin, Greeley Tribune Crime & Public Safety Reporter
If you’re doing social media management on the cheap, you can take just screenshots of the person’s profile, any public information you found that would show where they reside, and the comments themselves. We recommend having a folder for these actions. Then, within that folder, organize this info in a way that’s easy to navigate. There is also software that does this for you, like Archive Social (not affiliated, just what I know a lot of agencies use).
You can delete comments that are outside this scope, that take the topic of your post or page drastically off-target. The caveat with this is that you have to be fair and unbalanced across the board. If a local business is promoting its services on a public safety page, that is a comment you can delete. If they continue doing it, you would be safe blocking them, in our opinion. Again, document everything and save it so if they come back, you have receipts.
You can also disable all comments on a post. We recommend this as a last resort. Our reasoning is that your page should be curated and managed to be an online space that is as useful, fair, and legal as any in-person meeting you hold. In this instance, the courts have generally held that this is a public agency simply using its online platforms as a “notification,” not “communication,” tool.
We will link a great article by Amy Howe of the SCOTUSblog on both the cases we referenced (by someone with some more legal knowledge than a mouth-breathing ex-cop). This would also be a great thing to talk with your City/County Attorney, Social Media Manager and Media Relations Unit about. There are also trainings if you have people in this position to help them understand the importance.
Some of these are private training companies, often run by retired or active law enforcement, and government-hosted ones, often by FBI LEEDA or FEMA. If you're having trouble finding a good course, reach out to us and we're happy to use our contact to get you squared away!
Use your page to reach your community, keep them informed and keep it civil. Just like enforcing the law, there are best practices and there are legally prohibited actions. Make sure you know both, and both your page and community sentiment will grow! As any good cop knows...the best police work happens in the grey areas!
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PS – After the lawsuit was filed, a representative from the Mayor’s team unblocked the resident. Which doesn’t negate the alleged First Amendment violation, if true.
Kent Keller is a seasoned Brand Consultant, Social Media Manager, and Copywriter. He also acts as Chief Executive Officer of OS Media Group. With over a decade of experience as a police officer and nearly five years as the Public Information Officer and Media Relations Manager for a prominent police agency, Kent brings a wealth of expertise to the proverbial table. His background, combined with demonstrated successes in developing numerous successful marketing campaigns and brand strategies, uniquely positions him to assist you in effectively engaging with your customers or community members.