Open Meetings in the Digital Age: The First Amendment, Video Recordings, and Facebook Comments

by W. Anthony Andrews and Megan Lamb

With multiple social media outlets conveying public meetings, governmental bodies are faced with new dilemmas on many fronts. For instance: when can a governmental body delete an “offensive” public comment without violating the First Amendment? Recently, a federal court tackled this issue in Anderson v. Hansen, 519 F. Supp. 3d 457 (E. D. Wis. 2021).

Heidi Anderson’s children were enrolled at Elmbrook School District in Wisconsin. In August of 2020, Anderson attended a meeting of the District’s Board of Education to express her views on the District’s COVID-19 safety protocols. While speaking during the video-recorded public comment period of the meeting, she objected to six-foot social distancing measures and masking requirements for students. Anderson then went on to address one of the Board members, Dr. Mushir Hassan—a physician and the District’s medical liaison. She stated that she did not believe Hassan was the “right choice” to be the District’s medical liaison, since he served as a “leader in the Islamic community.” Anderson further objected to Hassan’s political leanings and stated that, since her children are Christian, they should not be forced to wear face coverings “any more than children who are Islamic or Muslim should be forced to, as you’ve put it, ‘be subject to the American style sexualization of children,’ and have to wear less clothing than you’re comfortable with your children wearing.”

In response to Anderson’s comments, the District banned her from its property unless she received permission in advance. The District aA person typing on a keyboard

Description automatically generated with medium confidencelso condemned Anderson’s actions and stood by Dr. Hassan. The District then removed (1) the portions of her public comment that concerned Dr. Hassan from a video of the meeting that had been posted to YouTube, and (2) the comments she left on the District’s Facebook page where she attempted to defend herself against public backlash.

Anderson filed a federal lawsuit alleging that her First Amendment right to free speech had been violated by the District. Broadly speaking, the First Amendment prohibits governments—including local governments—from suppressing a citizen’s speech based on its content. For example, a public body cannot prohibit an individual from speaking at its public meetings because the body does not agree with the speaker’s message.

Seizing on this, Anderson claimed the District’s choice to ban her from District property, the District’s removal of portions of her comments from video of the meeting, and the District’s removal of her comments from the District Facebook page were violations of her First Amendment rights.

The court granted a preliminary injunction against the ban. In response, the District rescinded Anderson’s ban and filed a motion to dismiss the case. The court found that the District acted constitutionally when it edited the meeting’s video footage, but found that the District may have wrongly edited her Facebook comments.

The YouTube Video

Anderson attempted to argue that the District’s decision to edit her out of the meeting’s video recording was a violation of her First Amendment rights. However, the court disagreed—the District’s decision to edit the video was constitutional. This was because a mere recording is not “private speech” protected by the First Amendment. Instead, it is just a record of prior speech that occurred during the public forum. As a result, the District was not unconstitutionally suppressing Anderson’s “speech” at all.

Additionally, the court found the District actually had a First Amendment right of its own to delete portions of Anderson’s comments from its video. The court pointed out that the District’s choice to alter the video was an “expressive act,” as the District did not condone Anderson’s comments. Because “[a] government entity is free to speak for itself, to say what it wishes, and to select the views that it wants to express,” there was no First Amendment violation.

The Facebook Comments

However, the District’s choice to delete Anderson’s Facebook comments was potentially unconstitutional. By choosing to allow comments on the District’s Facebook page, the District was required to tolerate whatever comments were left there. As the court put it, “the District allowed members of the public to write their own comments underneath the post” about Anderson’s comment and the District’s responsive letter “and to carry on discussions with one another.” Although the District “was not required to create this forum for public discussion, once it did so, it could not exclude speakers on the basis of viewpoint.” Stated differently, the District could not delete Facebook comments it simply disagreed with. Taking as true Anderson’s allegations that the District suppressed her speech in a public forum, the court found a potential constitutional problem and allowed Anderson’s claim to proceed.

The Takeaway

A public body must use caution if it chooses to use social media to communicate with residents. If a government does not wish to live with adverse comments, its best option is to prohibit all public comments in the first place. If it does otherwise, residents are free to make statements whether their viewpoint aligns with that of the public body or not. However, a public body can modify its own recordings.

If you have any questions about how the First Amendment impacts your locality, we recommend you contact one of our attorneys.