Can a School Delete Facebook Comments on Their Page?

Jessica L. Billingsley

Author: Jessica L. Billingsley

POST DATE: 3.1.21
Ccha  Education Law

In today’s hostile political arena, we’ve all witnessed or become a part of a Facebook comment war: initially the comments provide constructive criticism, but inevitably dissolve into insults. Often these word wars take place on private pages. On occasion, however, insulting comments or comment wars spill onto the Facebook pages of public entities, such as schools.

For example, the Honolulu Police Department recently settled a lawsuit for $31,000 over deleting negative Facebook comments. In 2015, a Florida Sheriff’s Department had to settle with a citizen after it deleted his Facebook comments and banned him from further postings on their page. Finally, the Indiana city of Beech Grove settled with the ACLU for an undisclosed amount after removing negative comments from its Facebook page.

The reason for all these lawsuits about comments you would typically scroll past on your own news feed? The First Amendment.

How the First Amendment Works

The First Amendment protects citizens’ free speech from censorship by public entities such as schools. The internet, and particularly, social media sites such as Facebook, have opened up an entirely new frontier of First Amendment concerns. These concerns compound when the site provides for and encourages participation from the public.

For school social media accounts that are not interactive (think Twitter), there are fewer First Amendment concerns. Often, those types of sites will constitute speech by the government.

However, participation by the public transforms a school Facebook page into a “limited public forum,” meaning the space is designated for speech by certain groups or for discussion of certain topics. In order to remove postings made by the public, schools need to ensure that their decisions are reasonable and content neutral.

Content neutral means that the content or viewpoint of the speech does not factor into the decision to remove the post. Thus, schools should not remove posts or ban users just because comments are negative or critical.

Obviously, there are some instances where the speech itself will not enjoy the protections of the First Amendment. The racist epithets of Facebook-posters can quickly be deleted without much concern. Similarly, obscenity, threats, commercial speech, and personal attacks can likely be regulated with less concern for First Amendment violations.

In order to temper the online keyboard war, several public entities create a “Comment” or “Moderation” policy. These policies give notice to the commenting public that certain types of posts or discussions will not be tolerated. The trickiest aspect of such a policy to enforce is when a policy directs users to “stay on topic.” In theory, the direction can cohabitate with the limited public forum standards, but must be systematically enforced lest discrimination or content neutrality may be questioned.

Regardless of the existence of a policy, best practices include keeping a record of any deleted post. If the school gets into hot water, the post can be reviewed at a later time and used as evidence that the school made the right call in taking it down.

Schools and all public entities should also be aware of the terms of service that Facebook and similar social media sites may have in place. In certain instances, the best course of action may include reporting the post to the site administrator.

While all this First Amendment discussion may make you want to delete your school’s Facebook account, such sites can also provide invaluable communication with your students and parents. If something comes up, the School Law Team at Church Church Hittle + Antrim will happily guide you through First Amendment requirements.

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