Tennessee Town Passes Policy Banning Negative Comments About The Town's Government

by Tim Cushing
Techdirt
Dec. 18, 2014

The commissioners of a small Tennessee town have just voted to ban negative comments about it from social media. This stupid move was prompted by "criticism and lies" being posted online, which supposedly "hampered" the town's government from performing its duties.

South Pittsburg City is a town of 3,000. This fact will limit the damage done by its city commissioners' new policy (which passed with 4-1 vote), but only because the town itself is tiny. The ban, however, is super-broad. (via Ben Swann and BRACE YOURSELF for always-awesome AUTOPLAY)

It applies to all city elected representatives, appointed board members, employees, volunteers, vendors, contractors and anyone associated with the town in an official capacity who uses social networks. The policy says those persons can't post anything negative about the city, its employees or other associates.

Examples include posted videos, blogs, online forum discussions, Facebook and Twitter, Commissioner Jeff Powers said.

Now, it's obvious that this ban violates the First Amendment rights of everyone involved. It's obvious to the lone dissenting voter, Paul Don King. It's not so obvious to the rest of the commissioners, who have offered a variety of terrible defenses the new policy.

Commissioner Jeff Powers:

"It seems like every few meetings we're having to address something that's been on Facebook and created negative publicity," he said. "This is just an industry standard nowadays."

Oh, lord. Have you ever heard of such a slight inconvenience? "Every few meetings." Sounds exhausting. If he thinks it's a drag dealing with negative comments periodically, just wait until he has to actively police social media for violators.

One, you're a government, not an "industry." So, that makes this move censorship rather than some sort of half-assed town TOS. It's called prior restraint and it's something the Supreme Court has recognized as a violation of First Amendment rights. You can't just tell any group of people they can't criticize the town or its employees/"other associates." That's not an "industry standard." It's not even a "government standard." Criticism is to be expected, not shut down.

Powers follows that up by attempting to clarify the situation, but only makes it more incomprehensible.

Powers said the policy doesn't forbid the use of social media, and it can be amended in the future.

"The first thing everyone wants to say is 'I can't post anything on Facebook,'" he said. "Well, you can. Just not [anything] that sheds a negative light on any person, entity, board or things of that nature. You can go ahead and post all you want."

Oh, OK. You're not banning anyone employed by or doing business with the city from using social media. You're just forbidding them from criticizing anyone employed by or doing business with the city. You can "post all you want" EXCEPT.

And "fixing it in post" with amendments isn't a great way to run a town's government. The idea is to produce good policies and statutes, not bad statutes that need to be amended (or rolled back) before they can mesh with the Constitution.

City Attorney Billy Gouger said the new policy is not intended to infringe on anyone's right to free speech.

"What this policy tries to do is reconcile that right with other rights," he said. "It does, to some extent, limit your ability to criticize or comment in an official capacity."

I am completely lost as to how Gouger has managed to reconcile the policy he passed with the words he's saying in defense of it. It is definitely "intended to curtail free speech." Free speech is the opposite of this policy's wording. How is "limiting your ability to criticize or comment" not a limit of free speech? Because it's in an "official capacity?" Even if that limitation manages to pass Constitutional muster (and good luck!), the limitation is effectively meaningless because the range of people this policy covers is so broad. "Volunteers, vendors and contractors" are still private citizens even if they're doing business with the town.

If you want to write individual agreements with each of these listed parties stating that doing business with (or being employed by) South Pittsburg City means not criticizing South Pittsburg City, then by all means do so. These parties can waive their rights, but it's still their choice. You can't just take it away. That (again) is prior restraint -- something that is exactly a "limit on free speech."

Finally, some words of "wisdom" from the mayor herself.

"Criticism is one thing," Mayor Jane Dawkins said. "Out-and-out lies and untruths -- that's another thing. Those kinds of things are the things that will be directed."

Hey, there's a civil process for dealing with lies and untruths. Try using that instead. Libel and defamation are not protected speech and any of the four easily-bruised members of the city commission should avail themselves of that remedy. Shutting people up with a stupid, unconstitutional policy isn't the answer, no matter how small your town is. That the number of people whose free speech rights have just been constrained will likely be low is no excuse. It's still what it is: censorship in the form of prior restraint.