Blurred Lines of Accountability: Who’s Liable When Platforms Silence Public Speech?

Government entities face growing challenges in maintaining compliance with the First Amendment when engaging with the public through social media platforms. A key problem arises when content moderation actions are taken by the platform itself, not by the government entity. In lawsuits involving deleted or hidden comments, public agencies must often determine whether the action was the result of an internal decision or an algorithmic process by the social media provider. Unfortunately, most platforms do not provide detailed logs or audit trails that would allow agencies to verify how or why a specific piece of content was removed. This lack of transparency complicates legal defenses and can expose agencies to litigation risk even when they did not initiate the moderation action.

The courts have not yet clearly defined the extent to which government agencies can be held liable for moderation actions taken by third-party platforms. In a notable case, *Knight First Amendment Institute v. Trump*, the court ruled that a public official's social media account could be considered a public forum, making viewpoint-based comment suppression unconstitutional under the First Amendment¹. However, this decision focused on deliberate actions taken by the account holder, not on automated deletions by the platform. As a result, agencies are left in a legal gray area, facing potential liability for actions they did not undertake and over which they have no direct control.

Developing Transparent Social Media Policies

One of the most effective strategies for mitigating risk is the implementation of comprehensive social media policies tailored to the unique legal obligations of government entities. These policies should clearly define what constitutes acceptable engagement, outline the criteria for hiding or removing comments, and provide guidance on how to document any moderation actions. Agencies should ensure that these policies are publicly accessible and consistently enforced across all platforms. This practice not only promotes transparency but also helps establish a defensible position in the event of a legal challenge.

Additionally, policies should include a protocol for handling user complaints regarding content removal or suppression. Establishing a clear appeals process allows members of the public to seek redress and helps separate platform-level actions from agency decisions. For instance, the City of Seattle publishes its social media policy and includes contact information for users to report perceived censorship². Such practices demonstrate a commitment to open dialogue and can help build public trust in government communication channels.

Training Staff on First Amendment Compliance

Frontline communications staff and social media managers must be trained to understand the legal implications of moderating user content. Unlike private sector organizations, government agencies are bound by constitutional constraints that limit their ability to restrict speech. This means that removing a comment for being critical, offensive, or unpopular can easily result in a First Amendment violation if the comment does not fall within a narrow category of unprotected speech, such as true threats or incitement to violence³.

Training should include real-world scenarios, legal case studies, and platform-specific guidance. Managers should know the difference between personal and official accounts, understand how to distinguish government speech from private speech, and be able to recognize when a social media page constitutes a limited or designated public forum. By equipping staff with this knowledge, agencies can reduce the chance of inadvertent violations and foster more constructive online engagement.

Leveraging Platform Tools While Protecting Free Speech

Many platforms offer automated tools that flag or hide comments containing certain keywords or links. While these tools can be useful for reducing spam and protecting users from harassment, they must be used cautiously by government accounts. Automated filters can unintentionally suppress protected speech, especially if they are configured too broadly or without regular oversight. For example, a keyword filter might remove legitimate criticism simply because it contains a flagged word or phrase, leading to potential legal exposure for viewpoint discrimination⁴.

Agencies should periodically audit their moderation settings and analyze the impact of any automated tools in use. Where possible, filters should be configured to flag comments for manual review rather than automatically deleting or hiding them. This allows human staff to assess context and make informed decisions consistent with First Amendment principles. Documentation of these decisions should also be maintained in case they are later challenged in court or through public records requests.

Platform Collaboration and Communication Protocols

Establishing a direct line of communication with platform representatives can help agencies better understand how moderation decisions are made and identify when actions are taken by the platform rather than the agency. While not all platforms provide this level of support, some, such as Facebook’s Government and Politics Outreach team, offer resources and account management for verified government pages⁵. Leveraging these relationships can assist in quickly resolving disputes and recovering erroneously deleted content.

Agencies should also consider documenting any correspondence with platform representatives and including these interactions in internal records. This information can be useful during litigation or public inquiries. If a pattern emerges in which certain types of speech are disproportionately removed by the platform, the agency may be able to advocate for changes or adjustments to moderation algorithms. Proactive engagement with platform providers, combined with internal procedural controls, will strengthen an agency’s ability to maintain open and legally compliant digital forums.

Balancing Open Dialogue with Community Standards

Government entities often find themselves caught between the need to allow open public discourse and the necessity of maintaining a respectful online environment. Social media platforms enforce community standards that may not align with legal definitions of protected speech under the First Amendment. For example, platforms may remove content for hate speech that does not meet the legal standard for incitement or true threats, creating tension between platform policies and constitutional rights⁶.

To navigate this conflict, agencies should clearly disclaim that their social media pages are subject to the platform’s terms of service but also reaffirm their commitment to constitutional protections. A pinned post or static “About” section may include a statement clarifying that while the agency does not moderate content beyond what is legally permissible, the platform may take independent action. This approach can help set appropriate expectations for the public and reduce confusion when content is removed or suppressed.

Conclusion: Proactive Governance in Digital Communication

Navigating First Amendment concerns on social media requires a proactive, informed approach grounded in legal understanding and operational discipline. Agencies must balance their responsibility to uphold constitutional rights with the technical and policy limitations imposed by private platforms. By developing clear policies, training staff, auditing moderation tools, and maintaining open lines of communication with platform representatives, government entities can mitigate legal risks and foster more inclusive digital engagement.

As case law continues to evolve and social media platforms adjust their policies and algorithms, government practitioners must remain vigilant and adaptive. Ongoing education, peer collaboration, and legal consultation will be essential to maintaining a defensible and transparent presence in the constantly shifting landscape of online communication.

Bibliography

1. Knight First Amendment Institute v. Trump, 928 F.3d 226 (2d Cir. 2019).

2. City of Seattle, “Social Media Policy,” accessed April 2024, https://www.seattle.gov/policies/social-media.

3. U.S. Department of Justice, “Report on the First Amendment and Public Forums,” January 2020, https://www.justice.gov/opa/pr/first-amendment-and-public-forum-guidance.

4. National League of Cities, “Managing Government Social Media: Balancing Engagement and Risk,” March 2022, https://www.nlc.org/resource/social-media-guidelines-for-cities/.

5. Facebook for Government, “Government, Politics & Advocacy,” accessed April 2024, https://www.facebook.com/gpa/.

6. Electronic Frontier Foundation, “Who Has Your Back? Censorship Edition,” September 2021, https://www.eff.org/wp/who-has-your-back-2021.