This post is Part 3 of a multi-part series. For a more detailed analysis of the issues discussed, please see Local Government Law Bulletin #148.
In light of the First Amendment implications of deleting individual comments or blocking individuals entirely from posting on official social media accounts, some local governments opt to draft public-facing comment policies for those accounts. Before drafting comment policies, government actors must understand which types of speech are protected—or categorically unprotected—by the First Amendment. In some cases, members of the public may face legal consequences, including criminal prosecution, for their speech on social media. Conversely, local governments can incur civil liability for improperly censoring the public's speech on social media. A basic understanding of speech protections under the First Amendment is therefore essential for local governments and government officials that operate social media accounts.
Before discussing categories of speech that are not protected by the First Amendment, I want to highlight some types of speech that appear frequently in social media comment sections and generally are protected from government interference: criticism of government officials and false speech.
Criticism of Government Officials
Negative comments about government affairs or officials on social media are a common source of frustration for local governments, but such comments are protected under the First Amendment. In some ways, negative comments are an expected cost of using social media for public engagement. Criticism of government officials and their actions is not merely protected, it lies at the core of the First Amendment’s protections for free speech. In the landmark case New York Times Co. v. Sullivan, the Supreme Court decades ago recognized that the United States has “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” which “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” 376 U.S. 254, 270 (1964). The First Amendment also protects individuals’ rights to express disagreement with government policies and decisions. See, e.g., Tobey v. Jones, 706 F.3d 379, 391 (4th Cir. 2013) (citing Mills v. Alabama, 384 U.S. 214, 218 (1966)) (“A bedrock First Amendment principle is that citizens have a right to voice dissent from government policies.”).
A 2025 decision of the North Carolina Court of Appeals illustrated how “unpleasantly sharp attacks” on public officials and employees may be protected from interference under the First Amendment. In State v. Barthel, 301 N.C. App. 466 (2025), the defendant was convicted of disrupting an official meeting after he silently unfurled a banner in a board of county commissioners meeting. The banner displayed a picture of the county clerk, referred to her as the county’s “most unprofessional employee,” and stated, “I’m not a gynecologist, but I know a c*nt when I see one!!” The Court of Appeals overturned the defendant’s conviction, finding that his banner was protected by the First Amendment.
A State cannot ban speech simply because it offends. . . . It cannot require citizens to be polite when criticizing their representatives. And it cannot arrest someone for expressing displeasure with an elected official, however bluntly expressed. The First Amendment draws no distinction between refined political discourse and coarse personal attacks on elected officials. Defendant’s speech is protected.
Id. at 477. The court went on to hold that the defendant’s removal from the meeting—a limited public forum—was not viewpoint-neutral or reasonable. First, the court concluded, “allowing praise while barring criticism in crude terms . . . is impermissible viewpoint discrimination.” Id. at 480. Second, the court found that the restriction on speech was not reasonable because removing the defendant from the meeting “served no legitimate purpose of facilitating orderly public comment” and instead was merely “censoring speech the officials found offensive.” Id. at 483. “If officials can remove speakers based solely on offensive language or ‘personal insults,’ ” the court opined, “then government can suppress unpopular speech according to speculative concerns.” Id. at 482.
My colleague Kristina Wilson and I have written a more detailed analysis of the Barthel decision and its implications for local governments in this blog post. The Court of Appeals also addressed the “fighting words” exception to the First Amendment in Barthel, which my colleague Phil Dixon discusses in this blog post.
Misleading, False, and Defamatory Statements
Government entities are sometimes concerned with how to combat misinformation on social media, which can be particularly rampant and detrimental in the wake of natural disasters and other emergency situations. However, as a general rule, the First Amendment protects speech regardless of its falsity, 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 Supreme Court has, however, held that some restrictions on false speech pass constitutional muster, including in cases of fraud and misleading advertising. I’ve written more about responding to misinformation and false speech on government social media pages in this blog post.
There may be some civil legal consequences for certain false speech on social media. For example, if an individual sees false statements on social media and reasonably relies on those statements to his detriment, and the statements were reasonably calculated to deceive and made with intent to deceive, the individual may have a viable civil tort claim for fraud. Some fraudulent speech may also have criminal consequences, as discussed directly below. False, defamatory statements of fact about a real person that cause injury to that person’s reputation could constitute grounds for a civil defamation lawsuit. And under a Federal Trade Commission rule adopted in 2024, 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. See 16 C.F.R. pt. 461.
Now, I’ll turn to some categories of speech that are excluded from First Amendment free speech protections.
Speech Integral to Criminal Conduct
The First Amendment does not protect speech that is “used as an integral part of conduct in violation of a valid criminal statute.” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949). Because speech intended to carry out an unlawful act “has no social value,” the Supreme Court has held that such speech is unprotected. United States v. Hansen, 599 U.S. 762, 783 (2023) (citing United States v. Williams, 553 U.S. 285, 298 (2008)). In the context of online speech, types of speech integral to criminal conduct could include extortion (G.S. 14‑118), obtaining property by false pretenses (G.S. 14-100), impersonation of a public officer (G.S. 14-277), or encouragement or inducement of a crime that contributes to its commission, among others. See United States v. Alvarez, 567 U.S. 709, 723 (2012) (“Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment.”). My colleague Phil Dixon has written on the “speech integral to criminal conduct” exception to First Amendment protections in more depth in this blog post.
Threats and Incitement to Violence
True threats of violence—including those made on social media—are categorically excluded from protection under the First Amendment. See Counterman v. Colorado, 600 U.S. 66, 72 (2023). 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); see also Counterman, 600 U.S. at 73 (“[T]he State must prove in true-threats cases that the defendant had some understanding of his statements’ threatening character.”).
Communicating threats constitutes a Class 1 misdemeanor under North Carolina law, and is a Class H felony if the threat is made against a legislative officer, executive officer, or court officer. G.S. 14-277.1; 14-16.7. Using electronic communication to threaten infliction of bodily harm upon an individual or physical injury to a person’s property is a Class 2 misdemeanor under North Carolina’s cyberstalking statute. G.S. 14-196.3. Moreover, it is 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). I have previously discussed potential responses to threats and harassment of government officials and employees in this blog post.
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). A variety of North Carolina criminal offenses may involve incitement to violence, such as insurrection (G.S. 14-8), advocating for the overthrow of the government (G.S. 14-11; 14‑12.1), terrorism (G.S. 14-10.1), and inciting to riot (G.S. 14-288.2). Any of these acts could, in theory, be carried out using comments, messages, or posts on social media and would not be protected under the First Amendment. For more discussion of North Carolina offenses involving incitement to violence, please see this blog post.
Obscenity
Obscenity—a category of speech that describes a limited subset of sexually explicit material—is not protected by the First Amendment. Under a test adopted by the Supreme Court, content is considered “obscene” if
- the average person applying contemporary community standards would find that the content, taken as a whole, appeals to the prurient interest;
- the content depicts or describes, in a patently offensive way, sexual conduct specifically defined by law; and
- the content, taken as a whole, lacks serious literary, artistic, political, or scientific value.
These three elements are known as the Miller test, resulting from the Supreme Court’s ruling in Miller v. California, 413 U.S. 15 (1973).
Distribution of material that is obscene and depicts a minor engaging in sexual activity is a crime under North Carolina law, even if the minor is entirely AI-generated or otherwise digitally created. G.S. 14-190.17C. For more on that issue, please see my colleague Joe Hyde’s blog post on 2024 amendments to North Carolina’s sexual exploitation laws dealing with AI images. Obscene images featuring real minors constitute a different category of prohibited material, as described below.
Some social media platforms automatically filter out sexually explicit content from appearing in posts or comments, while others do not. Some platforms allow individual users to customize their own settings with respect to what types of explicit content may be posted on their page or that they may view on the platform.
Child Pornography/CSAM
Child pornography involving actual children, otherwise known as child sexual abuse material (CSAM), is categorically unprotected by the First Amendment. New York v. Ferber, 458 U.S. 747 (1982). Distribution of child pornography via social media or any other online platform constitutes a crime under federal and state law. See, e.g., 18 U.S.C. § 2252A; § 1466A; G.S. 14‑190.17; 14-190.17C.
Connecting these Categories to Government Social Media Pages
When writing policies restricting comments on government social media pages, government entities may completely prohibit categories of speech that receive no First Amendment protection. Comments that fall into a category that is unprotected by the First Amendment may be deleted or hidden from a government social media page, and may in some cases form part of the basis for temporarily blocking someone from a government social media account. Nonetheless, even if such a comment is deleted, 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.
Conversely, comments containing misinformation or criticism of government officials likely cannot be deleted or prohibited without running afoul of the First Amendment—at least not solely on the basis that they are negative or false, without some nexus to criminal conduct or a separate violation of a viewpoint-neutral comment restriction (e.g. a policy prohibiting links in comments). I’ll discuss some potential legal pitfalls around drafting social media comment policies in my next post in this series.
