Legal Considerations

This information has been generalized to provide a background on a topic that remains unclear in today’s legal arena. This is not legal advice. Please seek the counsel of your attorney for interpretation on specific situations in your municipality.

Deleting Comments Made on Your Social Media Page

Can you delete comments made on your social media page? The short answer, it depends. A full analysis of this question requires wading into the deep and murky waters of Constitutional law, and then further muddying those waters by attempting to apply case law from the civil-rights era to the new and mostly un-litigated area of social media.

The analysis of whether a social media comment can be deleted should begin with asking the question – Is my municipal social media site government speech or is it a limited public forum? Legal theory supports the idea that a government is free to have its own voice and as such does not necessarily need to provide a soapbox for a viewpoint counter to their own. However, government is not free to limit speech (delete social media comment) when that speech occurs in a public forum or a limited public forum.

If your municipality uses social media to engage in public discussion and discourse than those platforms could very likely be considered a public forum or limited public forum and you would be restricted from deleting or limiting comments. If a public forum or limited public forum further analysis would need to be done to determine what restrictions on speech can be made.

In any case it is permissible and certainly good practice to establish rules of decorum and a policy which clearly outlines the rules and limitations on allowable comments. This kind of policy serves two purposes. First, it allows you to define the purpose and scope of your social media usage and could protect your social media sites from becoming a de facto public forum. Second, it puts potential commenters on notice that if their comments violate the established rules, then those comments will be deleted.

While the discussion above addresses the Constitutional issues surrounding the deletion or limiting of public comments there are other legal consideration. Chief among these other legal considerations is concerns with OPRA and record retention requirements. These issues must also be considered anytime a social media post whether made by your staff or a public commenter is considered for deletion.

Social Media Subject to OPRA & Record Retention Requirements

Posts and comments on social media are like any other public record and unless they fit into one of the few narrow exceptions they are subject to the Open Public Records Act (“OPRA”). More importantly, posts and comments on social media are subject to State record retention laws. This includes posts which may have been deleted due to a violation of commenting policies. Because of this, great care should be taken to ensure that all social media posts are maintained according to the proper record retention schedule.

The NJ Division of Revenue and Enterprise Services, Records Management Services has created a PowerPoint presentation on record retention in general and talks in greater detail about how social media plays into this. You can view this PowerPoint (PDF) (please note that clicking will automatically download the PowerPoint).

Social Media Policy

It is vital that your municipality creates a social media policy. A clear and comprehensive social media policy helps both the public and government employees understand how your social media sites are used and can help to avoid any future complications.

Building Local Government Social Media Policies

Created by the National League of Cities, a comprehensive guide (PDF) for creating a policy specific to local government.

Sample Policies