American Civil Liberties Union of Indiana

December 2, 2014
Cristal Brisco
Corporation Counsel
City of South Bend
227 W. Jefferson St.
Suite 1200 S
South Bend, IN 46601

re:

Proposed ordinance Bill No. 62-14

Dear Ms. Brisco,

I represent Common Council Member Oliver Davis who asked me to review the
proposed ordinance concerning social media and social networking use by members of the
Common Council. I believe the proposed ordinance, in its current form, contains serious
constitutional problems.
I believe that aspects of the proposed ordinance are unconstitutional, even as applied to
the Citys own technology uses. However, I would like to focus on other aspects of the
ordinance. In my estimation, the City simply is not able to control or attempt to govern a Council
Members internet and social media use on his or her own privately-owned technology. Yet, it
appears that this is exactly what the proposed ordinance purports to do at Sec. 2-9.1(d) and this
raises a number of problems:

The proposed ordinance, at Sec. 2-9.1(d)(3) prohibits a Council Member from posting, on
his or her private social media, any image considered offensive. This is a vague and
ambiguous term and the government cannot, consistent with the First Amendment,
prohibit offensive speech, even on its own technology, let alone on privately-owned
technology.

Sec. 2-9.1(d)(7) requires that Council Members monitor what other people post to their
page and monitor what photos people tag where a Council Member appears in a photo.
While we can debate whether this is a reasonable requirement when the site in question is
South Bends, it is completely unreasonable when the site is the Council Members
private site.
Price Building * 1031 East Washington Street * Indianapolis, Indiana 46202-3952
Telephone 317/635-4059 ext. 104 * FAX: 317/635-4105 * E-Mail kfalk@aclu-in.org

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Sec. 2-9.1(d)(8) requires that [p]osts should be informative and based on sustainable
facts which can be verified. The section further requires that all sources must be
verified. However, the First Amendment protects the right to utter opinions that cannot
be verified and that are not based on sustainable fact. Indeed, this might prohibit posts
that a candidate-member makes as part of his or her campaign.

Section 2-9.1(d)(9) requires a Council member to check the accuracy of comments before
any republication. Again, we can discuss whether this is a requirement that can be
imposed when the Council Member is using the Citys social media site. However, it is,
in my opinion, beyond the power of the City when the Council Member is using his or
her private site.

Section 2-9.1(d)(14) prohibits the Council member from posting unprofessional

material. This term is unconstitutionally vague and, no matter what its meaning, it is
simply beyond the constitutional authority of the City to reach.

This is not necessarily an exhaustive list of the problems that I perceive with the
proposed ordinance. However, given these serious problems I would hope that the Council will
refrain from enacting the ordinance.
In the event that the ordinance is enacted my office will consider bringing litigation to
enjoin the ordinances application.
Thank you very much.

Very truly yours,

Kenneth J. Falk
Attorney at Law

Price Building * 1031 East Washington Street * Indianapolis, Indiana 46202-3952

Telephone 317/635-4059 ext. 104 * FAX: 317/635-4105 * E-Mail kfalk@aclu-in.org