No More Thumbs Up on Social Media

Fall River
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No More Thumbs Up on Social Media

  • By: Margaret E. Long, Partner 

On September 18, 2020, Governor Newson signed Assembly Bill (AB) 992 into law. AB 992 amends the Brown Act's provisions concerning serial meetings by addressing, for the first time, the use of social media by members of a legislative body. AB 992, which amends Government Code section 54952.2, clarifies what kind of communications a public official may have on social media and what communications are prohibited.

 The Brown Act prohibits a majority of members of a legislative body from meeting outside a properly noticed public meeting to “discuss, deliberate, or take action on an item” that is within the legislative body’s subject matter jurisdiction. (Government Code section 54952.2) This restriction includes "serial" meetings in which members of a legislative body communicate indirectly through the use of intermediaries or through a chain of communications, ultimately involving a majority of a legislative body.

AB 992 clarifies that a public official may communicate on social media platforms to answer questions, provide information to the public or to solicit information from the public regarding a matter within the legislative body’s subject matter jurisdiction. However, the latter types of communications are only allowed as long as a majority of the members of the legislative body do not use any social media platform to “discuss among themselves” official business. According to AB 992, “discuss among themselves” includes making posts, commenting, and even using digital icons that express reactions to communications (i.e., emojis) made by other members of the legislative body.

In addition, AB 992 prohibits a member of a legislative body from responding “directly to any communication on an Internet-based social media platform regarding a matter that is within the subject matter jurisdiction of the legislative body that is made, posted, or shared by any other member of the legislative body.” Now, if one public official posted a comment in response to another public official’s social media post about an agency issue, that could be a Brown Act violation, assuming the two serve on the same legislative body.

The bill applies to Internet-based social media platforms that are open and accessible to the public. According to the bill, “open and accessible to the public” means “that members of the general public have the ability to access and participate, free of charge, in the social media platform without the approval by the social media platform or a person or entity other than the social media platform, including any forum and chatroom, and cannot be blocked from doing so, except when the Internet-based social media platform determines that an individual violated its protocols or rules.”

AB 992 encompasses activity on many types of social media platforms, including, but not limited to, Nextdoor, Snapchat, Instagram, Facebook, Twitter, blogs, TikTok, and Reddit. That means it could affect social media commenting, retweeting, liking, disliking, responding with positive or negative emojis, and/or screenshotting (photographing) and reposting.

 In sum, under AB 992, a member of a legislative body may participate freely in open and public social media platforms so long as they do not respond directly to a fellow member of their legislative body. Presumably, given the definitional scheme of AB 992, this means that a member of a legislative body may post a "response to a constituent's Facebook post, but may not post a response, even a "thumbs up" emoji, if the post is from a fellow member of the legislative body.