Council discusses, proposes social media policy for Keystone officials

Officials for the recently incorporated town of Keystone are devising a social media policy that will guide how staff and elected representatives represent themselves online.

During a Town Council meeting Tuesday, attorney Jennifer Madsen laid out the initial policy proposal that will guide how town employees and council members use social media in their official and personal capacity. It establishes rules for what the town can and cannot post as well as First Amendment rights the public has when interacting with officials online.

“When you create a town social media account, you’re creating essentially a public forum under the First Amendment,” Madsen said, adding that it is akin to hosting a public town meeting.

“People have a First Amendment right to provide comments to the town council on really any issue,” Madsen continued.

“The same is true, then, for social media.”

Any official town social media cannot prohibit people from commenting on town posts or participating on their social media page as doing so would be in direct violation of free speech rights, Madsen said.

Madsen gave the example of a case in July 2019 when a federal appeals court ruled that thenpresident Donald Trump violated the First Amendment by blocking users on Twitter, now known as X. Even though Trump had been blocking users from his personal account, the platform was used for official presidential communication — meaning blocked users were excluded from interacting with the president on a public forum.

Madsen said the same rules apply for local government officials, which is why the town’s social media policy recommends council members act cautiously with their personal accounts.

A post or discussion regarding town policy on a council member’s or town employee’s personal account will likely be subject to the free speech laws because it is creating a public forum for town business.

Similarly, if a council member or staffers uses their personal social media to represent themselves in their official town capacity, they would be prohibited from deleting comments or posts of other people or themselves.

This could also open up officials’ social media to record requests under the Colorado Open Records Act.

If three or more council members engaged in a social media discussion, it would be considered a public forum and also subject to a records request.

For these reasons, Madsen recommends town officials create a disclaimer on their personal accounts that their posts do not necessarily reflect the position of the town. Doing so will help them if they do come up against a claim of free speech violation.

“Should you unfriend somebody, should you exclude somebody from your page, should you delete a post, somebody could argue that your page … has been used as a public forum,” Madsen said.

Madsen said it would be worth the council considering if they wanted to create official social media accounts for each council member or to just have all town social media be directed through one account.

Council member Sarah Keel said some municipalities’ social media guidelines provide rules for usernames and handles as well as define differences between likes and comments. For example, liking a post could be permitted but commenting would constitute an open forum. “Adding more specifics makes it less vague … and people actually know what they can and cannot do,” Keel said.

Council member Carol Keer agreed that the town’s social media policy could have more specificity to address some of these issues, adding, “Clarity is necessary when you’re in the moment” of using social media.

Council members gave direction to staff members to continue to revise the policy before a final adoption at a later date.