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WPD stops allowing comments on its Facebook page, sparking First Amendment questions

Published: Aug. 11, 2021 at 2:45 PM EDT
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WILMINGTON, N.C. (WECT) - The Wilmington Police Department is no longer allowing the public to comment on its Facebook page. The department uses the page to publicize surveillance images of suspects, post missing persons bulletins, let the public know about traffic delays, and more. It has allowed comments on posts on the page for the last ten years, and continued to allow them as recently as June 24, but not anymore.

Comments on the page generated tips for police, but also allowed people to post unflattering words about the police department, and divisive comments in general.

On June 24, in response to a WPD post about a shooting on 13th Street, Facebook user Matt Barker commented, “We heard the shots while we were at a swim meet. That is the second time I’ve been at a swim meet down there with my young children when someone was shot close enough that we could hear the gunfire. Do better.” Another person commenting on that post referenced how much gun violence Wilmington has for being a relatively small city, while someone else asked why the Black Lives Matter activists weren’t doing more to protest crime in the city.

The WPD provided the following statement when asked why they began limiting comments on their Facebook page:

“Over the past year, the Wilmington Police Department found people engaging in adversarial conversations through the Facebook platform that could easily lead to violence and the department does not want to enable such communication on its page. For this reason, WPD has decided to remove all commenting from our Facebook page. Our hope is that this will help stop the divisive language which has filled our page over the past few years. The use of racist words, hate speech, and violent threats among some community members has become a prevalent issue. That language has no place on our page. We are here to help unite the community, not divide it.”

Wilmington Police Chief Donny Williams declined a request for an on-camera interview about the policy change.

Facebook does not give users the option to disable comments entirely, but it does allow a page administrator to limit comments to people who are tagged. Since WPD is not tagging anyone, it is effectively blocking all comments. While many previous comments on the WPD Facebook page had little substantive value, some did. Comments provided the public with an easy way to communicate with the police department. While people still have the option to call or text tips to police, disabling comments may cost the department potentially valuable information for solving crimes and locating missing people.

“A Facebook page, especially in this context, should be an unlimited public forum,” First Amendment Attorney Mike Tadych told WECT. “It’s already been determined to be a public forum and I can’t see any real basis to limit it. There’s no real estate restriction, there’s no ‘You’ve reached your comment limit,’ that kind of stuff so it seems to me that limiting speakers is contrary to the First Amendment.”

But the City of Wilmington, which oversees departmental social media pages like the WPD’s, is defending the department’s decision not to allow comments.

“The intent of WPD’s Facebook management practice is that no person be able to comment on any given post, which does not invoke a freedom of speech issue since it applies to all users equally and does not differentiate based upon opinion or viewpoint,” a Wilmington city attorney responded when asked about the police department’s new policy.

The WPD hasn’t stuck to its new policy entirely. On three separate occasions during the month of July, the author of a WPD post forgot to limit comments. Each time, people commented on the post before WPD limited comments, and those comments were then hidden from public view. That means several Facebook users had the opportunity to voice their thoughts on the post - while others are now unable to do the same.

“The police, law enforcement or any public officials cannot pick and choose the messages of the public that they agree with and only showcase those on the social media public pages that they use,” North Carolina ACLU Attorney Irena Como told WECT. “So that is the fundamental problem there, that could potentially amount of viewpoint discrimination which the fourth circuit has held is unconstitutional.... Turning off all comments, that seems less problematic in terms of viewpoint discrimination.”

However, Como says the removal of existing comments, as the WPD did in July, does raise constitutional concerns. Removing the comments also appears to conflict with the City of Wilmington’s social media policy on comments. It reads, “If a social media site or any other web-based platform used by the City allows for comments to be posted by the public, the Communications Office reserves the right to edit or remove content based on the following criteria....” The policy goes on to list qualified reasons for a comment to be removed, including comments that are irrelevant to the topic at hand, political, vulgar, defamatory, discriminatory, sexual, encouraging illegal activity, compromising public safety, in violation of copyright laws, or soliciting for a religious or commercial cause.

WECT attempted to obtain copies of the comments that were removed from WPD’s Facebook page. The WPD said the comments on the first post about a traffic alert on January 25 were accidentally deleted when the WPD attempted to hide them. But they did share copies of the comments from an officer swearing-in ceremony on July 31, and a K-9 demonstration the same day. All of the comments were positive.

“Thank you for serving as a LEO. May God bless you all and keep you safe,” wrote Catherine Figgs in a now-hidden Facebook comment on the post, which was in keeping with the other hidden comments. None appeared to violate the City of Wilmington’s allowable comment criteria.

“The comments that were on the post were thought to be disabled from the start,” WPD spokesperson Brandon Shope explained of the oversight. He characterized this as a technology issue, noting they were aware of it and working to make sure this didn’t happen again.

Two recent federal court cases, one involving President Donald Trump’s Twitter page, and one involving the Facebook page for a County Board of Supervisors Chairwoman in Virginia, found that a governmental social media account is a public forum for free expression if the site clearly invites public engagement. In both of those court cases, people sued and won after elected officials blocked constituents’ comments because they objected to the views expressed in those comments.

“The government has no obligation to create these forums, but when it does, the expressive rights are the same as they are in traditional public forums,” UNC School of Government first amendment expert Frayda Bluestein wrote on the topic. “The government can create a forum for a limited purpose, but once the forum is established, expression that is consistent with the forum’s purpose cannot be restricted because the government objects to the content.... [The] government is prohibited from engaging in ‘viewpoint discrimination’ in any type of public forum.”

Bluestein’s takeaway point for government entities utilizing social media:

“Whether it’s Twitter, Facebook, or just an old fashion website, if you control it, and are actually using it to transact public business, you should assume that it will be classified as governmental and viewpoint discrimination will be prohibited. On the other hand, if the purpose of the platform is clearly for the exclusive, one-way communication by the government, with no option for general comment, the forum analysis does not apply. Your platform should be clear about its purpose and you should adhere to any rules that are set out for its use.”

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