To Allow or Not Allow Comments…That Is the Question
Knowing the Waters has covered social media in prior columns, including back in 2024, following two United States Supreme Court decisions addressing government employees and elected officials use of social media and when the use of personal pages crosses the line into a public forum subject to constitutional limitations. This month’s column addresses different issues and focuses on the community’s public comments made on port-maintained social media accounts.
Legal Framework:
The First Amendment protects the ability to engage in public debate and share opinions; however, this right is not absolute – there are types of speech that are not protected and in certain spaces (forums) the government has the ability to restrict certain types of speech.
It is well known that freedom of speech is protected by the First Amendment to the U.S. Constitution. What is less well understood, but key to any legal question involving the enforcement of rights protected by the First Amendment, is that the U.S. Constitution only protects against government restraints on free speech. A private corporation or person acting in their personal capacity cannot unconstitutionally retrain another person’s protected speech rights. That’s why professional athletes who are dismissed from their team for kneeling during the national anthem would not have a successful claim against their former team, a non- governmental private organization, for violating their First Amendment rights. In the law, this concept is known as “state action” or “government action.”
In the context of social media, the 2024 U.S. Supreme Court case Lindke v. Freed affirmed this state action component in establishing a two-part test for state action in social media— that the government official had both (i) actual authority to speak on behalf of the government on a particular matter; and (ii) that the official purported to exercise that authority in the relevant post(s). 1 To have a valid First Amendment constitutional claim, a person must show the government restricted their protected speech rights. 2 The “government action” in a First Amendment claim related to social media can occur when the government entity removes or deletes a post on a publicly maintained social media account.
After establishing government action, the next consideration in a free speech analysis is what type of forum is the speech occurring in – generally the forums are either:
(i) traditional public forums (streets and parks);
(ii) designated public forums (municipal museums or government fairgrounds);
(iii) limited public forums (public meetings); or
(iv) nonpublic forums (military bases and nonpublic government offices).
The highest speech protections are given in traditional public forums 3 and in designated public forums, 4 lesser in limited public forums, 5 and the least in nonpublic forums. 6 Generally, a government cannot restrict expression because of its message, its ideas, its subject matter, or its content. In a limited public form, the government has some ability to regulate speech, including public comments on social media accounts. Specifically, governments are allowed to impose viewpoint-neutral and reasonable restrictions on speech, considering the forum’s purpose.
Examples of viewpoint-neutral and reasonable restrictions include:
- Comments unrelated to the post being commented on;
- Comments promoting commercial transactions or advertising businesses;
- Comments endorsing or opposing political candidates or ballot propositions prohibited under state law RCW 42.17A.555;
- Language or content that is obscene, defamatory, threatening, fraudulent, or that incites violence; and
- Conduct or encouragement of illegal activities.
How to monitor and enforce a policy with viewpoint-neutral and reasonable restrictions:
Recent federal court cases generally treat interactive comment sections on government social media accounts as limited public forums, where the government has a policy designed to permit on-topic commenting and preserve the limited status of the forum. 7 However, governments that inconsistently enforce their policy risk losing the status of a limited public forum. That’s what happened in a recent Washington federal court case, Leighty v. Spokane County. In that case, the court granted an injunctive order requiring the sheriff’s office to restore removed posts because the sheriff’s office’s inconsistent and viewpoint-based enforcement of its policy did not conform with the requirements of a limited public forum. 8 The policy provision at issue provided:
The sheriff’s department “reserves the right to delete postings [including]
comments on matters unrelated to activities of Spokane County or Spokane
Valley, associated boards, committees or programs, policies, operations or
general areas of responsibility and representation.”
The court found that the sheriff’s department inconsistently applied its policy and removed comments based on viewpoint, removing comments that were critical of the department, claiming they were off-topic, while leaving comments that praised the department. The Leighty case underscores the importance of consistent enforcement of adopted policies when monitoring social media comment sections. Among the consequences for a violation of constitutionally protected speech is that the government may have to pay attorneys’ fees and costs to the plaintiff. 9
Considerations and Best Practices:
- Ports using social media should first answer the question of whether they want to allow public comment on their posts at all. Does your port only want to broadcast information on social media, or does your port want to allow interactive public comments. And if your port allows interactive comments, does your port have the capacity to monitor comments and consistently enforce port policy?
- Adopt a social media policy governing all aspects of social media use at the port.
- Adopt “Public Use Guidelines” within your social media policy and make them available to the public so they know how to appropriately comment on the port’s limited public forum.
- Use extreme caution with keyword filters to remove particular comments based on automated keyword searches or AI without human review.
- Train port staff on the limitations of protected speech and how to appropriately and consistently implement the port’s social media policy when monitoring public comments.
- Include procedures to escalate post removal decisions to management and/or work with your port’s legal counsel before taking action on questionable posts to ensure consistent and lawful application of your port’s social media policy.
- Maintain a policy enforcement log tracking what comments were removed and the reasons for the removal.
- If a post is hidden or removed from the comment section of the port’s social media account for violating the public use guidelines and port adopted policies, make sure your port is maintaining a record of that post consistent with your port’s adopted records retention policy and in compliance with the Public Records Act requirements.
- Government speech is also protected at some level. A port can say what it views as inappropriate speech. For example, the port’s guidelines can say what discourse it does not condone. Alternatively, the port could take a more positive spin and set a community standard in its policy of what kind of discourse the port intends to foster. While members of the public can make obnoxious/offensive comments in various contexts, public officials can also call them out on how those comments are offensive and unhelpful to discourse. The obnoxious/offensive comments are protected speech, but the public official’s response is also protected free speech (as opposed to action of the port removing or blocking speech). In this way, guidelines can preempt unproductive rhetoric and claim some sort of high ground. Members of public that resort to offensive commentary, over time, lose credibility—at least we hope so.
- Keep port staff and elected officials’ personal social media accounts separate from the official government accounts.
Whether to use social media and to what extent your port wants to allow interactive public comments may differ port by port. There is no right or wrong answer for use of social media or allowance of comments, but for those ports who do use social media, staff and commissioners should be aware of the parameters of the First Amendment and other laws that impact management of public comments.
As always, if you have questions, work with your port’s legal counsel to address your specific questions. If you have a question for Knowing the Waters, please e-mail me at tschermetzler@csdlaw.com
1 Lindke v. Freed, 601 U.S. 187 (2024).
2 A person suing a government for a First Amendment violation is suing under a federal statute – 42 USC
§ 1983, often referred to as a 1983 claim. A 1983 claim requires the plaintiff to show the defendant (1)
acted under the color of state law; and (2) violated a right, privilege, or immunity found in the Constitution,
here the First Amendment.
3 In traditional public forms, the government may impose reasonable time, place, and manner restrictions
on speech, but viewpoint restrictions on speech are prohibited.
4 In a designated public forum, the speech receives the same protection as in a traditional forum, but the
government has the ability to open or close the forum.
5 In a limited public forum, in which the government has created a forum that is limited to use by certain
groups or dedicated solely to the discussion of certain subjects, speech restrictions in limited forums need
only be viewpoint neutral and reasonable in light of the purpose served by the forum.
6 In nonpublic forums, the government may restrict speech so long as the regulation on speech is
reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s
view.
7 Ethical Treatment of Animals v. Tabak, 109 F.4th 627 (D.C. Cir. 2024) (National Institute of Health’s
(NIH) social media accounts were limited public forms and set subject matter and use guidelines); Krasno
v. Mnookin, 148 F.4 th 465 (7th Cir. 2025) (Comment threads associated with state university’s social
media pages were limited public forums and the university’s publicly-posted social media statement
reserved to the university the right to remove any content for, among other things, being off topic,
indicating that the university did not intend for comment threads to proceed without limits on discussion,
but instead intended to open the comment sections for the discussion of certain subjects—principally,
those that relate to its posts).
8 Leighty v. Spokane County, NO. 2:24-CV-0165-TOR (US District Court E.D Wash 2024).
9 42 USC § 1988.
