Oakley City Council to Discuss Social Media Policy

On Tuesday, the Oakley City Council will hold a work session to discuss implementation of a social media policy.

The policy would apply to members of the Oakley City Council and would apply to usage of their private social media accounts—city administration, staff, and the police department already have policies for social media.

According to the staff report:

As concerns private Council member usage of social media, I note the City has very limited ability to enact enforceable policies. This is because the decision of Council members to communicate on private social media accounts belongs to Council members alone, not the City. For First Amendment reasons, the City generally cannot impose rules that forbid Council members from engaging in any type of speech—even if that speech may be perceived as improper or civilly actionable. The First Amendment rarely permits government to impose “prior restraints” on speech.

To the extent the Council could adopt a social media policy for itself, I believe that policy would have to be confined in the manner I have proposed in a draft ordinance. For this reason, the ordinance does not state any commands or impose any consequences. Instead, it makes clear that whenever a council member communicates on a social media platform he or she operates:

• His or her communication may be a public record if the communication relates to official City business;
• The communication could become a Brown Act “meeting” if more than one council member engages with the communication in any manner;
• Communications about quasi-judicial matters could expose the council member to claims he or she is prejudicially biased against the parties affected by the matters; and
• Taking adverse actions against individuals who engage with Council member social media accounts—such as “blocking” or deleting comments—could be construed a violation of First Amendment rights. (On this point, I attach a copy of the recently decided United States Court decision, Lindke v. Reed, which I believe is essential reading for any council member who wishes to be active on social media.)

City Attorney Derek Cole said in the report that rather than attempt to make the above enforceable through punitive consequences—which, as noted, would likely constitute impermissible “prior constraints”—the draft ordinance states the above points effectively as truisms.

If You Go:

Oakley City Council Meeting
April 9, 2024 at 6:30 pm
3231 Main St, Oakley CA
1. Staff Report
2. Draft Ordinance Enacting Social Media Policy
3. Copy of United States Supreme Court Decision, Lindke v. Freed

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