Misinformation about western North Carolina has spread rapidly in the wake of Hurricane Helene. As the New York Times reported last week, this surge of online misinformation has included false statements about the hurricane and the government’s response, calls for militias to form against FEMA, and threats of violence and antisemitic attacks aimed at government officials. The News & Observer has catalogued many of the rumors circulating on social media about western North Carolina and responses from government agencies here, while FEMA has provided responses to Hurricane Helene rumors here. Federal, state, and local officials have condemned the rampant spread of false information about the situation in North Carolina, noting that such misinformation can be dangerous and divert resources away from critical emergency response efforts.

What can a local government do when misinformation or threats are posted on government social media pages? How can a local government respect and protect the First Amendment rights of citizens while also addressing dangerous rhetoric and protecting government employees from physical harm? This blog post answers questions about these topics.

What does the First Amendment protect?

The First Amendment to the United State Constitution broadly protects certain freedoms from governmental interference, including the freedom of speech. The Free Speech Clause of the First Amendment restrains how the government (including federal, state, and local governments) can restrict speech, but this protection from governmental regulation is not absolute. The U.S. Supreme Court has held that some categories of speech are not protected by the First Amendment or receive a lower level of protection. Some of those categories are discussed in this post.

How does the First Amendment apply to misinformation?

As a general rule, the First Amendment protects false speech, meaning the government is limited in how it can regulate or restrict misleading or false statements by members of the public. No categorical exception to the First Amendment exists for false speech, since “some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation.” United States v. Alvarez, 567 U.S. 709, 718 (2012). The U.S. Supreme Court has, however, held some government restrictions on false speech to be constitutional, including in cases of defamation, common-law fraud, and false or misleading advertising. The First Amendment also allows criminal punishment for speech that is “integral to criminal conduct,” which my colleague Phil Dixon has written about in this blog post.

Are threats of violence or incitement to violence protected under the First Amendment?

No. True threats of violence—including those made online, in public meetings, or in any other forum—are categorically excluded from protection under the First Amendment. The North Carolina Supreme Court has defined a “true threat” as “an objectively threatening statement communicated by a party which possesses the subjective intent to threaten a listener or identifiable group.” State v. Taylor, 379 N.C. 589, 605 (2021) (emphasis added).

Communicating threats constitutes a Class 1 misdemeanor under North Carolina law (G.S. 14-277.1), and in some circumstances is a Class 1 felony if the threat is made against a legislative officer, executive officer, or court officer (G.S. 14-16.7). Using electronic communication to threaten infliction of bodily harm on an individual or physical harm to a person’s property is a Class 2 misdemeanor under North Carolina’s cyberstalking statute (G.S. 14‑196.3).  It is also a federal crime to threaten to assault, kidnap, or murder a federal official or employee with intent to impede, intimidate, or interfere with the official or employee while they are engaged in the performance of official duties, or with intent to retaliate against such official or employee on account of the performance of their official duties. 18 U.S.C. § 115(a).

Speech is also not protected by the First Amendment if it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (emphasis added). This blog post describes a variety of North Carolina criminal offenses that may involve incitement to violence, such as insurrection (G.S. 14-8), sedition (G.S. 14-11), and terrorism (G.S. 14-10.1).

Can individuals face legal consequences for what they say on social media?

Yes, in some cases. As described above, communicating a “true threat” is a criminal offense under North Carolina law, and threatening federal officials or employees can constitute a criminal offense under federal law. State law also makes it a crime to wrongfully obtain money, goods, property, or services under false pretenses with an intent to cheat or defraud. G.S. 14-100. For example, this could apply to an individual who solicits donations for community hurricane relief on social media but intends to keep all the money for their own personal benefit. Impersonating a state or local public official on social media may also constitute a crime under G.S. 14-277, depending on the circumstances of the false representation. Likewise, impersonating a federal official or employee acting under governmental authority is a federal crime pursuant to 18 U.S.C. § 912.

There may also be civil legal consequences to certain false speech on social media and elsewhere, including the following examples:

• Under a Federal Trade Commission (FTC) rule adopted earlier this year, it is an unfair or deceptive act or practice to falsely pose as a government entity or officer in or affecting commerce, or to materially misrepresent affiliation with a government entity or officer in or affecting commerce. 16 C.F.R. Part 461. The rule is enforceable through litigation and civil penalties.
• False, defamatory statements of fact made about a real person that cause injury to that person’s reputation could constitute grounds for a civil defamation lawsuit. Desmond v. News & Observer Publ’g Co., 375 N.C. 21, 41 (2020).
• If an individual reasonably relies on false statements to their detriment, and such statements were reasonably calculated to deceive and made with intent to deceive, the individual may have a viable civil tort claim of fraud. Rowan Cnty. Bd. of Educ. v. U.S. Gypsum Co., 332 N.C. 1, 17 (1992).

What if someone’s speech doesn’t fall within one of the unprotected or “less protected” categories described above? When and how can the government or a government official restrict an individual’s speech without violating the First Amendment?

Under the U.S. Supreme Court’s First Amendment case law, the government’s ability to regulate speech will depend on where the speech is being restricted. Different standards apply when the government is regulating speech that occurs on government property or online spaces that are operated by the government. When an individual challenges a government restriction on free speech in a physical or virtual space owned or operated by the government, courts begin by identifying the nature of the “forum” where the speech is being restricted and then assess whether the government’s restrictions satisfy the standard of judicial review associated with that category of forum. This process, known as forum analysis, groups physical and virtual government spaces into four categories: traditional public forums, designated public forums, limited public forums, and nonpublic forums. Our prior blog post on forum analysis describes these different categories in more detail, along with the standards for governmental restrictions on speech in each type of forum.

Why does forum analysis matter to local governments in the social media context? When a government official deletes comments on an official government social media page or blocks someone from accessing that page, it may lead to a lawsuit alleging a violation of an individual’s First Amendment rights under 42 U.S.C. § 1983. To assess whether the government official’s actions were constitutionally permissible, a court would typically begin by analyzing the type of forum the government created on social media, which determines the standard for evaluating the constitutionality of speech restrictions in that space. Courts may look to comment policies the local government has in place on its social media page to help determine how broadly the government intended to open up the forum for speech, as discussed in this blog post.

Posts on a local government’s social media page are receiving numerous comments criticizing the government’s response to the hurricane. Does the First Amendment allow the local government to delete those comments or block the people who made them from accessing the page?

Generally speaking, no. In Davison v. Randall, 912 F.3d 666, 682 (4th Cir. 2019), the Fourth Circuit Court of Appeals held that the interactive portions of a local government official’s Facebook page—areas where the public could post comments or reply to the official’s posts—constituted a public forum for First Amendment purposes. The Fourth Circuit held that banning a user from that forum based solely on the fact that he was expressing views critical of the government’s actions constituted viewpoint-based discrimination, which violates the First Amendment in all forums. The same analysis would apply to the interactive portions of an official social media account of a local government (or local government department) if users’ comments are deleted solely because they expressed negative views about the government. A more in-depth discussion of Davison and content moderation by local government officials on social media is available in this blog post.

Does that mean a local government can never delete comments on its social media posts? No. Just as a local government may have a policy governing public comment periods in governing board meetings, it may also have a public-facing policy regarding comments on its social media page. In order to abide by the First Amendment, restrictions on comments should be viewpoint-neutral and reasonable in light of the purpose of the social media page. To be reasonable, restrictions in a social media policy must support a legitimate government objective and be capable of clear, consistent interpretation and application.

For example, a local government might consider stating on its social media page that any comments or posts should relate to the official business of the local government, or that individuals may not post comments containing links to any external websites. Such restrictions would not discriminate against speech based on viewpoint if they were applied in a neutral and consistent manner. A local government could also prohibit social media comments that are unprotected by the First Amendment, such as those containing true threats of violence. Local governments should, however, avoid restricting comments based on vague, undefined, or overly subjective criteria (e.g., saying comments will be deleted if they are “political” or “inappropriate”). I discuss social media comment policies in more detail in this blog post.

Does a local government have to allow comments on its social media posts?

No, it does not. Local governments that choose to operate social media accounts are under no obligation to create a new public forum by enabling comments on their social media posts. They can choose to turn off comments as soon as they make a new post. On some social media platforms, this can be done before the post goes live, but on others, it may be done immediately after the post is published. A local government, just like a private social media user, can choose whether they want to use a social media platform for one-way communication (pushing out content) or for a more open-ended dialogue (opening posts to comments).

Could a local government allow comments on some of its social media posts, but not others?

Yes. Again, a local government has no obligation to create a new public forum for speech by opening any of its social media posts to comments. It may choose to create public forums on some of its posts by allowing comments, but not others. When a local government does allow comments on some posts, any rules or policies it has created regarding comments on the page should be enforced in a consistent, viewpoint-neutral manner across all posts that are open for comments.

What about “hiding” comments on a local government’s social media post that otherwise remains open to comments? Is that better than deleting the comments?

For First Amendment purposes, there is no meaningful difference between the government “hiding” a comment or “deleting” a comment. In either case, the government is blocking speech from being seen by other members of the public. As described above, this generally violates the First Amendment unless the comment being hidden or deleted: (1) is unprotected speech, such as a true threat of violence, or (2) violates a reasonable, viewpoint-neutral, consistently enforced, publicly posted comment policy that comports with First Amendment standards for limited public forums.

A local government put up a hurricane-related post and it got flooded with comments containing threats, conspiracy theories, and harassment towards government employees. May the local government just delete the underlying post it made all together?

Arguably, yes. The underlying post itself is government speech, and the government may choose to “stop speaking” by deleting its own social media post. Just as the First Amendment creates no obligation for the government to open new forums for public speech, it also does not require the government to permanently leave open designated or limited public forums that they have created. See, e.g., Sons of Confederate Veterans, Virginia Div. v. City of Lexington, 722 F.3d 224, 232 (4th Cir. 2013) (“A government is entitled to close a designated public forum to all speech.”). For example, a town could create a new designated or limited public forum for speech by installing a bulletin board in the town square for community flyers and messages, but the First Amendment does not require the town to leave that bulletin board (or the flyers posted on it) up indefinitely.

If a local government does take one of its social media posts down, it should retain a copy of the post and any comments on it (either through screenshots, printing a copy of the page, or a digital archiving tool) to ensure compliance with public records retention requirements.

Does the First Amendment apply to what actions individual public officials can take to block users or delete comments from their own social media pages and accounts?

The answer to this question depends on the extent to which the individual public official (1) possesses actual authority to speak on the government’s behalf, and (2) purports to exercise that authority when the official posts on social media. See Lindke v. Freed, 601 U. S. ___ (2024). A more in-depth discussion of this topic and the Lindke decision is available in this blog post.  As a general rule, local government officials should attempt to maintain a clear distinction between their “official” and “personal” social media accounts. If a public official wants to have the ability to block individuals from viewing her personal account or to delete comments on personal posts without violating the First Amendment, she should avoid any appearance of exercising her authority to speak on behalf of the government on that personal account and clearly label the page as personal in nature. If a public official’s account and all of the posts on it are truly personal in nature and do not purport to speak on behalf of the government, then the official can block users or delete comments at will without running afoul of the First Amendment.

What if someone makes false, damaging statements about a specific government official or employee on social media—can the official or employee take any action?

Yes, but it will generally involve filing a civil defamation lawsuit, which involves some personal cost to the official or employee involved. To succeed on a defamation claim under North Carolina law, a public official or employee must generally show that the defendant caused the official/employee harm by making false, defamatory statements about the official/employee, which were published to a third person. If the person bringing the lawsuit is a public official and the statement at issue concerns her official conduct, a more challenging standard applies due to First Amendment principles—she must prove that the statement was made with “actual malice,” meaning “with knowledge that it was false or with reckless disregard of whether it was false or not.” Desmond v. News & Observer Publ’g Co., 375 N.C. 21, 38 (2020).

A local government is seeing a pattern of harassment and threats directed towards a particular local government employee or official. How can the local government respond?

I have a prior blog post addressing this question in more detail here. Depending on the nature of the conduct, potential remedies could include seeking a workplace violence prevention no-contact order or criminal charges based on communicating threats, harassing phone calls, stalking, or cyberstalking. My colleague Shea Denning has written more about the potential criminal remedies in this blog post.

How can a local government combat misinformation circulating on social media without deleting comments on official government pages?

One of the best ways for local governments to deal with misinformation is to provide accurate information in response. Confront false rumors head-on instead of allowing them to swirl in a vacuum. Provide clear, concise information through social media platforms and traditional media channels that directly addresses false statements and conspiracy theories circulating online. If possible, use multiple platforms to get this information out to the public. If a local government only uses one platform to communicate (e.g., Facebook), it may be missing significant demographics of residents that get their news and information via other social media platforms (e.g., Instagram, X (Twitter), Reddit, etc.). Make sure social media posts containing important information are made in a format that is easily shareable.

On the other hand, it’s generally not productive for local governments to directly respond to or argue with specific individuals in social media comment sections. This can quickly devolve into an antagonistic exchange and tends to draw more attention to the original comment.

Conclusion

Misinformation can be extremely damaging, as we’ve seen in the aftermath of Helene. Responding to false rumors online can slow down critical disaster response by consuming limited government resources, but failing to respond to misinformation may keep some residents from accessing the aid that they need or lead to increased harassment or threats against government officials. Attempting to censor or prohibit the dissemination of false or misleading information generally violates the First Amendment, though not in cases in which the speech constitutes a true threat of violence or is integral to criminal conduct. For local governments, a proactive approach that promotes the timely dissemination of accurate information across multiple communication channels may be the best course of action to comply with the law while keeping people informed and safe.

Part 2 of this blog post series will focus on how local governments can respond to misinformation and threats in the context of public meetings. Stay tuned.