Censorship concerns raised before 3-1 vote
Deliberations on a resolution for a social media policy led to a lengthy discussion of the State Open Meetings law, also known as Sunshine Law, during Farragut Board of Mayor and Aldermen’s meeting Thursday, Feb. 12.
“I’ve been using social media to communicate with the Town for nine years, since I’ve been here,” Town Communications manager Wendy Smith said. “A good portion of that time, it’s
been recommended by my professional organizations that we have a social
media policy in place to address possible problems that can come up with social
media.”
Smith said the social media policy would allow “Town of Farragut staff to remove content that is deemed harmful and is not protected by the First Amendment.
“We don’t have problems with social media happening in such a way that I would feel like posts need to be removed with the exception of some fraudulent posts that get posted on Visit site, trying to get people to buy tickets for free events, and that kind of thing,” she said. “But, I would like to have this policy in place just in case we change our minds.”
The policy reads: “Town’s social media pages do not reflect the opinions of the Town, and the Town does not promote or endorse comments posted on our pages."
Also, it states, “While we encourage individuals to share thoughts and opinions on the Town of Farragut’s social media platforms, we expect this to be done respectfully, truthfully and in a constructive manner. Comments may be removed by the Town if they contain:
• Defamation (false and injurious language)
• Threats (serious expressions of intent to commit an unlawful act of violence)
• Spam (content that is not related to the subject matter of the post) or content that is so unrelated, in the sole opinion of staff, that it causes confusion concerning the actual subject matter of the original post
• Encouragement of illegal activity
• Malware links
• Promotion of illegal discrimination, such as offensive and disparaging comments that target ethical, racial, cultural, religious or other groups protected by law
• Content that purports to claim ownership of intellectual property rights contrary to the true ownership interest established by another party
• Personally identifiable information about an individual, such as financial or health care data.
“Links posted within comments may be deleted if they are deemed inappropriate based on the above criteria. Please be aware that all comments are subject to disclosure as public records. Comments may be disabled on public service announcements made through social media, including information about public safety and emergency situations.
However, resident Kimberlie Parks opposed the policy, citing the First Amendment.
“Let’s be clear what this policy is. This is not about manners; it’s not about people calming down before they type; it’s not about protecting feelings,” she said. “It’s about power and whether you actually have it.
“… I’m asking this Board on the record, ‘where in the Tennessee code has the General Assembly granted you the authority to regulate or suppress lawful citizens’ speech in an online public forum?’” asked Parks, adding she has searched the state codes.
“That authority does not exist,” she added. “… you would still be bound by the First Amendment.”
Parks said the policy already has been enforced.
“Comments have already been hidden; citizens have already been censored; and the Board had not yet voted on anything,” she added. “That is not just premature. That is government without authority …
“Nobody’s arguing that true threats … should remain online,” Parks said. “Those are already unlawful and have processes in place. The problem is the vague, discretionary language [of the policy].”
“I don’t think there’s anywhere in TCA that says we have the authority to have a social media platform, but we have one, and I think we also have the authority to regulate the use of our platform within the law,” Town attorney Tom Hale said. “TCA 6-2-201 … every municipality incorporated into this charter may … [Section 22] define, prohibit, abate, suppress, prevent and regulate all acts, practices, conduct, businesses, occupations, callings, trades, uses of property and all other things whatsoever detrimental or liable to be detrimental to the health, morals, comfort, safety, convenience, welfare of the inhabitants of the municipality …”
“What this policy does is it is a policy for regulating other parties’ rights to comment and post on social media platforms that the Town sponsors,” Hale said. “As a government, the Town is required to observe and to not violate the First Amendment Freedom of Speech of those who communicate on its sponsored social media platforms where comments are permitted.
“There is some speech, however, that the First Amendment does not protect,” he said, adding those items are listed in the policy for which posts would be removed.
He stressed posts have not been taken down because they were disagreed with.
“This policy is designed for people who want to use our social media what they can and can’t do without the Town feeling obligated to take it down.
“This is more complicated than everything put on there, we have to leave it up,” Hale said. “We have to use certain judgement so that our citizens don’t get hammered by people who misuse the Internet.”
Town administrator David Smoak said there are several staff members who handle various pages of social media. The first step was to relay the staff member’s concern to the Communications manager, then to Smoak.
“If I have any questions of whether it violated the policy, I would get a legal opinion from Mr. Hale,” the administrator said.
Just before deliberations, though, the discussions took another turn when Alderman Joe LaCroix announced he and another alderman [Drew Burnette, who was copied on the email], had received an email from a South Ward citizen, for which LaCroix responded several times regarding the policy.
Burnette, who left earlier during the meeting to attend a funeral, was not present during discussions of the social media policy, Sunshine Law nor the vote on the social media policy. He returned to the meeting during discussion of the last item on the agenda.
“There was no deliberation at all, just fact finding, but since I did have a conversation on a Board-related item that I’m about to vote on, I need to bring that up,” LaCroix said.
“I’ve been asked to look into this,” Hale said. “This is the second time this has come up within the last little bit. They were sent email together and when Mr. LaCroix responded, he responded to the citizen, and he copied Mr. Burnette on that.
“That’s pretty clearly not deliberation,” the attorney said. “That’s passing information. It’s not a violation of the Sunshine Law, for the two of them to have had that communication. A little later, Mr. LaCroix sent another email, in which he copied Drew Burnette.
“My advice has always been just don’t communicate … in email with other Board members,” Hale said. “If you do, you’re susceptible to being accused of deliberating even though you may not be deliberating, and we have to go through the process of proving you weren’t deliberating. The same thing with a casual meeting.
“My recommendation is just don’t have those conversations,” he added.
“Mr. Hale, you stated chance meetings are permissible as long as there’s not a deliberation,” Cain said. “I was censored for having a seven-word conversation with [the late] Alderman [David] White, not an email chain … I think we need to have a full investigation and discussion on this.
“You also said because we had a full conversation on this today that the whole issue is cured,” Cain said. “We had this same type of conversation on mine that the item has still not come up for a vote, and you stated mine was not cured.”
“In your situation, you wrote to the [farragutpress] and told them that you and Mr. White had had a conversation and you agreed how you were going to vote on a particular issue that was coming before this Board,” Hale said. “That’s totally different from what we have here.”
“I still have to disagree with you because the conversation was ‘I don’t like it’ and ‘Neither do I,’” Cain related. “That was the whole conversation between Alderman White and myself. That was it.”
“Then you misreported what you wrote to the newspaper because the newspaper had your letter in there that you wrote and said you had this conversation and reached this agreement,” Hale retorted.
“There was nothing about a conversation,” Cain said. “It was a chance meeting … I believe you have decided this needs to go away so it’s not made an example, but I was made an example.”
“If anything was violated it was that they didn’t follow my recommendation,” Hale said of the emails between LaCroix and Burnette.
Ultimately, the Board voted 3-1 to approve the social media policy. Alderman Alex Cain voted against the policy while Mayor Ron Williams, Vice Mayor Scott Meyer and Alderman LaCroix voted for the social media policy. Burnette was absent.
In other action, the Board unanimously voted “yes” on the following:
• Approval of a zoning ordinance amendment on second and final reading to allow masonry to be averaged in a new building. The amendment came about after a request from West End Center’s architect, as they are planning a new retail building on the West End Center parking lot. While the Town ordinance in the Mixed Use Town Center requires new buildings have to be 75 percent brick on each of the elevations, the amendment allows the applicant to average the face brick requirements over the four elevations, according to Town Community Development director Mark Shipley. “That’s also what’s required in our Architecture Design Standards,” he added.
• Approval on second reading to amend the Town’s codes to allow interactive sports analysis businesses to operate in Office zoned properties. It came about after a request from Christian Miller, who plans to open such a business in Town.
• Approval of a professional services contract with LDA Engineering Inc. to engineer and design a parking lot and trailhead for the Red Mill Dam project.
