Creating a Comment Policy for Government Social Media Pages: First Amendment Considerations
This post is Part 4 of a multi-part series. For a more detailed analysis of the issues discussed, please see Local Government Law Bulletin #148.
For many reasons, local governments operating official social media accounts may want to implement public-facing comment policies for those accounts. A comment policy helps the general public understand the boundaries for permissible comments on a government account. It also gives employees who moderate comments on that account parameters for what can be deleted and what must be retained. Beyond these practical and informational purposes, a comment policy can also help protect a local government from liability by serving as evidence of the type of forum the government intended to create.
Why Create a Social Media Comment Policy?
In a previous blog post, I discussed how the public forum doctrine applies to the comment sections of government social media pages. In the context of a First Amendment lawsuit against a government entity related to its restrictions on speech in a government-owned or government-controlled space, written policies or guidelines for that physical or virtual space may serve as important indicators of the government’s intent for that space. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985). A written policy helps courts understand whether a government entity is intentionally opening a space for public expression (i.e. creating a public forum), and if so, what limits it intended to set on the type of public expression allowed in the space. A local government may strengthen its case for a court to classify a social media page as a limited public forum—thus providing a more favorable standard of judicial scrutiny—by setting out clear rules limiting the subject matter that can be posted on the page.
For example, in a case involving a First Amendment challenge to the University of Wisconsin-Madison’s practice of hiding certain negative comments, the Seventh Circuit Court of Appeals found that a “Social Media Statement” publicly posted on the University’s website constituted “[o]bjective indicia” of the University’s intent to create a limited public forum. Krasno v. Mnookin, 148 F.4th 465, 484 (7th Cir. 2025). In relevant part, the University’s Social Media Statement read:
While UW–Madison does not regularly review content posted to social media sites, it shall have the right to remove any content for any reason, including but not limited to, content that it deems threatening, profane, obscene, a violation of intellectual property rights or privacy laws, off-topic, commercial or promotion of organizations or programs not related to or affiliated with the university, or otherwise injurious or illegal.
The Seventh Circuit found that this statement, along with the University’s efforts to enforce the limitations it imposed, “reflect that the University did not intend to create a designated public forum without limits on discussion, but instead intended to open the comment sections for the discussion of certain subjects—principally, those that relate to its posts.” Id. at 484. Accordingly, the Seventh Circuit applied the more lenient standard of review that applies to limited public forums—determining whether the University’s restrictions on comments were reasonable and viewpoint-neutral.
In the event of a First Amendment lawsuit, how the government interprets and applies its social media comment policy in practice will also be relevant to a court’s analysis. For example, if a local government has a comment policy purporting to create a limited public forum by restricting comments on certain subjects but then fails to ever enforce that policy, a court may find that the government’s practice of non-enforcement created a designated public forum. See, e.g., Hopper v. City of Pasco, 241 F.3d 1067, 1076 (9th Cir. 2001) (“A policy purporting to keep a forum closed (or open to expression only on certain subjects) is no policy at all for purposes of public forum analysis if, in practice, it is not enforced or if exceptions are haphazardly permitted.”).
Given that policies can serve as significant evidence of a government’s intent for a social media page, local governments should carefully assess how they want the public to engage in speech on their social media accounts and ensure that their policies and practices align accordingly. A menu of possible approaches follows.
- In some cases, a government may decide to use a social media account for one-way communication only—creating a nonpublic forum—by not allowing any comments at all.
- In other cases, a local government may decide that it simply does not wish to moderate or restrict comments in any way and open up its account to public engagement with no comment policy in place, which likely creates a designated public forum. In a designated public forum, restrictions on speech based on the speech’s content (e.g. deleting a comment because of the message the commenter expressed)are presumed to be unconstitutional.
- Some local governments may wish to split the difference between these two options by opening up their social media accounts for public comments but having a policy in place that restricts the subject matter of those comments, which likely creates a limited public forum. If the government opens a limited public forum, the restrictions on comments must be reasonable and viewpoint neutral. Moreover, the government “must respect the lawful boundaries it has itself set” by adhering to its comment policy when deleting comments or blocking users. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).
The distinction between these forum types is significant, because it impacts which test a court will use when evaluating allegations that an individual’s First Amendment rights were violated through the deletion of a comment or blocking of a user. For more on that topic, please see my previous blog post in this series on public forums and government speech on social media.
Implementing a Comment Policy
A local government should be careful that its application of a comment policy does not undermine its stated intent. Inconsistent or lax enforcement of a comment policy may lead a court to find that the government has created a designated public forum in practice, even if it purported to create a limited public forum in the policy. Moreover, inconsistent enforcement may also constitute viewpoint discrimination, which is prohibited in all types of forums. For example, imagine a city that has a comment policy prohibiting links to external websites, but in practice, city staff only delete comments containing links to sites that promote a particular political party. Even though the policy prohibiting links was viewpoint-neutral as written, it would discriminate based on viewpoint as applied by the government staff enforcing the policy in an uneven manner. Local governments should take care to ensure that officials and employees enforcing a policy understand its terms, know when they are allowed to block users or delete comments, and comprehend the importance of even-handed, uniform enforcement.
As a best practice, a local government’s social media comment policy should be posted somewhere public, prominent, and accessible to individuals who engage with the government’s page or account. The best way to accomplish this may depend on the length of the policy and the unique features of the social media platform. For example, on a platform like Facebook or Instagram, a comment policy could be displayed as a “pinned” post that users see at the very top of the local government’s page or profile. Space restrictions on some social media platforms may require that the local government post a link to a website containing the full policy, as opposed to including the full text on the government’s page or profile.
What Comments Can Be Prohibited in a Comment Policy?
While a number of courts across the country have opined on the distinction between designated and limited public forums in the social media context, very few courts have evaluated the constitutionality of specific restrictions on comments on government-operated social media accounts. Accordingly, local governments currently have little guidance from the courts on which specific terms can be included and enforced in their social media comment policies without violating the First Amendment.
Despite the unsettled legal landscape around social media and comment policies, local governments can draw upon some principles from existing First Amendment case law when crafting social media policies, as described in the remainder of this post.
1. Unprotected Speech May Be Prohibited Completely
Local governments may completely prohibit categories of speech that receive no First Amendment protection, which I have described in more detail in this blog post. This includes true threats of violence, incitement to violence, speech integral to criminal conduct, obscene images and videos, and child pornography. Local government officials or employees who moderate content on official social media pages will likely need training to understand how courts define some of these categories. For example, many people might assume the word “obscenity” refers to profanity, rather than sexually explicit images and videos. Likewise, the term “speech integral to criminal conduct” will likely require some explanation and examples.
Comments that fall into a category that is entirely unprotected by the First Amendment may be deleted or possibly serve as the basis for blocking a user from a particular page or account. Nonetheless, a local government may need to preserve a copy of such comments for public records purposes or for purposes of serving as evidence in a criminal investigation.
2. Subjective Standards and Vague Language Are Strongly Disfavored
Some local government social media comment policies prohibit “offensive,” “defamatory,” or “inappropriate” comments. Though such restrictions may be well-intentioned, they might run afoul of First Amendment speech protections.
First, these types of restrictions likely discriminate on the basis of viewpoint. In cases decided over the past decade, the Supreme Court has ruled that governmental restrictions on speech that is “immoral,” “scandalous,” or “disparaging” are viewpoint-based and therefore violate the First Amendment. See, e.g., Iancu v. Brunetti, 588 U.S. 388 (2019). One of those decisions was in Matal v. Tam, 582 U.S. 218 (2017), a case regarding a First Amendment challenge to a clause of the Lanham Act that prohibited federal trademark registration for marks that might disparage any persons, living or dead. In reaching its conclusion that the disparagement clause was unconstitutional, the Supreme Court opined:
To be sure, the clause evenhandedly prohibits disparagement of all groups. It applies equally to marks that damn Democrats and Republicans, capitalists and socialists, and those arrayed on both sides of every possible issue. It denies registration to any mark that is offensive to a substantial percentage of the members of any group. But in the sense relevant here, that is viewpoint discrimination: Giving offense is a viewpoint. (emphasis added)
Overly subjective standards regarding objectionable content leave substantial leeway for local governments to discriminate based on viewpoint. In the words of the Supreme Court, “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” Matal, 582 U.S. at 244. The Fifth Circuit Court of Appeals has concluded, for example, that a policy of deleting “inappropriate” comments on a sheriff’s office’s social media page “based on a state actor’s subjective judgment” of what constitutes “inappropriate” speech was viewpoint-discriminatory. Robinson v. Hunt Cnty., 921 F.3d 440 (5th Cir. 2019).
Second, subjective restrictions on comments may not meet the “reasonableness” test because they are overly vague and subject to open-ended interpretation. In a case involving a First Amendment challenge to a state ban on political apparel in polling places, Minnesota Voters Alliance v. Mansky, 585 U.S. 1 (2018), the Supreme Court held that the ban was unconstitutional because the word “political” was too “indeterminate” for the law to be clearly and consistently applied. The Court determined that the law did not provide “objective, workable standards” whereby a decisionmaker could determine what apparel would be allowed and what was prohibited (for instance, even a button or T-shirt saying “Vote!” could potentially be prohibited as “political”). Though “reasonableness” is a “forgiving test,” the Court opined, the government must still “be able to articulate some sensible basis for distinguishing what may come in from what must stay out.”
To avoid a constitutional challenge based on “reasonableness,” local governments should be careful to avoid vague and subjective language in social media comment policies. When describing which types of comments are prohibited, the language in a policy should not leave room for multiple different interpretations of a word or phrase. A comment policy should make it crystal clear—to both government decisionmakers and members of the public—what content is allowed and what content is prohibited in comment sections.
3. Restrictions Should Serve a Permissible Government Objective
In determining whether a particular governmental restriction on speech is “reasonable” in a limited public forum or nonpublic forum, courts consider the importance of the government interest that the restriction serves, the purpose of the forum, and the nature and function of the forum. This requires evaluating whether both the “means and ends” of the restriction are reasonable, including whether the speech restriction serves a “permissible objective.” Mansky, 585 U.S. at 13. A government-imposed limitation on speech can be upheld as reasonable in a limited public forum or nonpublic forum even if it is not “the most reasonable or the only reasonable limitation” to achieve the government’s objectives. Cornelius, 473 U.S. at 808. In other words, the government objective behind the restriction does not have to be compelling or significant, nor does the restriction on speech have to be “narrowly tailored” to meet that objective (as in the case of a traditional or designated public forum).
There is relatively little analysis in opinions issued by the U.S. Courts of Appeals of whether specific governmental restrictions on social media comments serve permissible objectives. In most First Amendment cases involving comment restrictions on government social media accounts, courts have held such restrictions unconstitutional because they are unreasonable in their operation or breadth, or because they are viewpoint-based. In other words, courts have focused heavily on the unconstitutionality of the “means” of these restrictions, rather than on their “ends.”
For example, in Krasno v. Mnookin, the University of Wisconsin-Madison claimed that its rule prohibiting “off-topic” comments on its social media pages was intended to keep “its comment threads unclogged, enabling its audience to interact with its posts and the University to respond to questions and comments.” The Seventh Circuit concluded that this was “a permissible objective” in light of “the communicative purpose of the comment threads.” Despite the fact that it served a legitimate objective, the court ultimately concluded the “off-topic” rule was unreasonable under the First Amendment due to being “indeterminate” and lacking “objective, workable standards,” as will be discussed later in this post.
In nonpublic forums and limited public forums outside the social media context (e.g., those involving physical spaces on government property), courts have upheld restrictions on First Amendment activities as reasonable where the restriction was intended to limit congestion and disruption, prevent disruption of a government property’s intended function, protect the safety and convenience of those using a public forum, prevent expressive activity that would hinder a government agency’s effectiveness in serving the public, or avoid the appearance of political favoritism on behalf of the government. It is unclear whether these types of objectives, which may be reasonable in certain types of physical areas of government property, would also be deemed reasonable in a virtual space like a social media page. For example, speech that could be disruptive when shouted in the lobby of a government agency or the hallway of a courthouse may in some cases cause no (or minimal) disruption when merely posted as a comment on a social media page. What serves as a “permissible objective” to limit speech in some forums may not be deemed reasonable in others.
The Ninth Circuit drew this distinction between disruption in meetings and disruption on social media in Garnier v. O’Connor-Ratcliff, 41 F.4th 1158 (9th Cir. 2022), a case involving two parents who were blocked from commenting on social media pages operated by school board trustees. The school board trustees testified that they blocked the parents because they were “spamming [the trustees’ pages] repetitively,” and their repetitive comments tended to “fill up the page.” The Ninth Circuit rejected the trustees’ analogy to case law regarding comment rules imposed at in-person local government meetings and rejected the argument that these repetitive comments were disruptive, finding that Facebook and Twitter users could easily scroll past or ignore the repeated comments.
4. Prohibiting Links in Comments Requires Viewpoint-Neutral Enforcement
A plaintiff who wants to argue that a governmental restriction on speech is unconstitutional may do so through bringing either a facial challenge or an as-applied challenge to the restriction. Facial challenges allege that a law or policy is unconstitutional on its face, meaning it is unconstitutional as written and not enforceable under any set of circumstances. As-applied challenges, on the other hand, allege more narrowly that a law or policy is unconstitutional in the way the government has applied it to a particular individual or entity. Even laws and policies that are facially constitutionally permissible may be found to violate an individual’s constitutional rights based on how they are applied in practice. For example, a restriction that is facially viewpoint-neutral can be found viewpoint-discriminatory as applied if, in practice, the government’s enforcement of the restriction burdens or prohibits the expression of a particular viewpoint (while simultaneously allowing or favoring the expression of alternative viewpoints).
Some local government social media comment policies prohibit comments containing links to external sites (i.e., sites other than the social media platform itself, or in some cases, any links leading away from the government’s page). Prohibiting links to external sites is, on its face, a viewpoint-neutral restriction. If this policy is applied consistently and in a neutral manner any time a hyperlink is featured in a comment, then it does not discriminate against speech based on its topic or viewpoint. Moreover, such a restriction may be supported by a number of legitimate government objectives. For example, prohibiting external links in comments on a government social media page helps to ensure that visitors to the page are not directed to a website that leads to a phishing scheme, a malware attack, or other types of digital fraud.
However, to ensure that such a restriction is reasonable and viewpoint-neutral as applied, a restriction on hyperlinks in comments should be enforced consistently regardless of the content of the link. A local government with such a rule in place cannot routinely allow comments with links it deems innocuous to remain on its page while deleting comments with links it deems objectionable. Uneven enforcement would support a plaintiff’s argument that such a restriction is viewpoint-discriminatory as applied.
5. Restrictions Prohibiting “Off-Topic” Comments Must Be Carefully Crafted
A local government or government official might state on their social media page that all “off-topic” comments are prohibited. Such a restriction arguably does not discriminate based on viewpoint if applied in a neutral manner (i.e., deleting all off-topic comments, regardless of the viewpoint expressed). However, recent case law indicates that the constitutionality of such a restriction will entirely depend on how carefully it is worded and applied.
In People for the Ethical Treatment of Animals v. Tabak, the D.C. Circuit Court of Appeals examined the constitutionality of a rule prohibiting “off-topic” comments on government-operated social media pages. 109 F.4th 627 (D.C. Cir. 2024). The case involved a First Amendment challenge to “Comment Guidelines” maintained by a federal government agency, the National Institutes of Health (NIH), for its Facebook and Instagram pages. Among other types of content, the NIH Comment Guidelines prohibited “off-topic posts” by members of the public. The Comment Guidelines did not define “off-topic,” and the D.C. Circuit concluded that “without such guidance . . . it is far from clear where the line between off-topic and on-topic lies.” Id. at 637. The court found that NIH’s off-topic rule failed the reasonableness test for a limited public forum due to its lack of “objective, workable standards” that would “guide either NIH’s social media moderators or the public as to how to divine ‘what may come in from what must stay out.’ ”
In 2025, the Seventh Circuit Court of Appeals ruled on a similar comment restriction in Krasno v. Mnookin, 148 F.4th 465 (7th Cir. 2025). Animal rights advocate Madeline Krasno alleged that the University of Wisconsin-Madison violated her First Amendment rights by deleting or hiding her comments about the University’s primate testing facilities on the University’s social media pages. The University’s “Social Media Statement” reserved the right to remove “off-topic” comments, and its guidance to its social media staff gave them discretion to “remove posts that are unrelated to the topic or purpose of the [social media] page.” Id. at 473. The University used customized keyword filters—primarily focused on words related to animal testing—to enforce its social media guidelines. For example, on Facebook, the University automatically filtered and hid comments using the following keywords: “peta, macaques, animal laboratories, testing on animals, animal testing, barbaric, wnprc, primate, primates, experimenting on, research animals, cruelty, torturing, torture, vivisection, monkeys, and experimenting.”
The Seventh Circuit concluded that the University’s “off-topic” comment rule was unreasonable because it “neither clarified what it means to be ‘off-topic’ nor provided ‘objective, workable standards’ to guide its social media managers’ discretion.” Id. at 485 (quoting Mansky, 585 U.S. at 21). The fact that the rule was “enforced through sheer discretion” of social media staff and through “inflexible and context-blind keyword filters” led to the Seventh Circuit holding the off-topic comment restriction to be unconstitutional as written and as applied to Krasno’s comments.
Collectively, the decisions in Mansky, Tabak, and Krasno indicate that using the single phrase “off-topic” to describe prohibited comments will likely not survive a First Amendment challenge. Instead, a local government that wants to limit comments based on topic should consider how it could provide more clear, objective standards in its social media comment policy around what it means for a comment to be “off-topic.” For example, in theory, these types of alternatives might provide more clarity to decisionmakers and users:
- A policy could state that any comments “must relate to the official business of [the county/municipality/agency]” and provide some examples of topics that do and do not relate to the official business of the local government.
- A policy could state that any comments “must only discuss topics within the jurisdiction and authority of [the county/municipality/agency]” and provide some examples of comments that are and are not within that jurisdiction or authority.
- A policy could state that any comment “must relate to the topic of the underlying post on which the comment is made.”
Each of these three alternatives would provide more clarity than merely prohibiting “off-topic” comments, by instead defining what it means to be on-topic. The third version—requiring comments to be related to the underlying post on which the comment is made—arguably has the greatest chance of enforceability. Whether or not a comment relates to the business, jurisdiction, or authority of a government entity leaves some room for interpretation by creating a relatively broad universe of comments that could theoretically be “on-topic.” On the other hand, requiring comments to relate to the specific post on which they are made creates a very narrow, discrete category of comments that will be on-topic (and accordingly, makes it clear when comments are prohibited because they do not relate to the post’s topic).
In my next post in this series, I’ll discuss the use of profanity filters and other content filters to moderate comments on government social media pages.
