From the Legal Hotline (1-877-NEWS-LAW)
Q. Is there any sort of standard legal policy about deleting social media comments that range from untrue in some cases to hate speech in others? We would never want to impinge on freedom of speech, and in the past have only deleted comments that are outright hateful, racist or similar. But recently, our editorial team has been talking about how to handle a comment on a post that resulted in us finding out about allegations made against someone in our company that, to the best of our knowledge, are categorically untrue.
The discussion now is whether deleting the comment would be worse than ignoring it (or responding to it), or if deleting it is a violation of the first amendment. It doesn’t seem racially motivated, nor is it an attack in the ways we sometimes see on other posts.
All this to say—is there legal recommendations on when to delete and when to let people “go off,” so to speak? (Again, preserving the right to freedom of speech is always our goal—and most of our comments are absolutely wonderful—so I tend to delete/block/report with great caution.)
A. You raise a good question about third-party posts (e.g., a comment on your website or Facebook page). If the posts contain allegations you find “categorically untrue,” what are your options? First, keep in mind that your online platforms are largely insulated from liability for defamatory postings made by third parties under Section 230 of the Communications Decency Act. You will not lose this immunity even if you edit the content, whether for accuracy or civility, and you will be entitled to immunity so long as your edits do not substantially alter the meaning of the original statements.
However, if you alter someone else’s statement so that it becomes defamatory (e.g., changing the statement “Bob is not a murderer” to “Bob is a murderer”), you would be responsible for the content of the edited statement; and if it turns out to be untrue, you could be liable for defamation. In addition, if you add your own commentary along with the user-submitted content, you will only be shielded from liability for the material created by your user, not for your own statements.
So, what do you do in this case? I have received similar questions from other members. I think you can remove the offending comment if you choose without unduly risking CDA immunity. Further, going forward, from a general perspective, you might want to add language that distances you or lessens the impact of untrue (or even nasty or hateful comments) that you have no control over such as those on your Facebook page. You might post something like this along with the link–“Our publication commits to fair and fact-checked reporting in news stories; we do not, however, endorse or fact-check comments posted by our readers on our Facebook page. For the facts, read the story.”
Also, here are some practical guidelines you can consider, taken from the Digital Media Law Project: https://www.dmlp.org/legal-guide/immunity-online-publishers-under-communications-decency-act
If you passively host third-party content, you will be fully protected under Section 230.
If you exercise traditional editorial functions over user-submitted content, such as deciding whether to publish, remove, or edit material, you will not lose your immunity unless your edits materially alter the meaning of the content.
If you pre-screen objectionable content or correct, edit, or remove content, you will not lose your immunity.
If you encourage or pay third parties to create or submit content, you will not lose your immunity.
Q. I had a quick question for you if you don’t mind. I spoke with a marijuana dispensary today and I just wanted to ask if you had anything you could share with me on that industry in regard to paid ads? As I understand it, there’s still no issue for them to run in print- but it’s been a bit since we’ve run an ad for a dispensary, so I wanted to double check. Anything that highlights what’s legal and what’s not would be amazing, most of them still seem a little confused, and I guess a month ago laws changed that affected their ability to do events in the community etc. Thank you for your time!
A. DOH OMMU finalized an Emergency Rule 64ER25-6 on Dec. 31, 2025 that addresses advertising. The rules say that an MMTC may advertise or market using sponsored, paid, or targeted advertisements on the internet, including social media, only as follows:
- An MMTC must obtain prior approval of the sponsored, paid, or targeted advertisement pursuant to Rule 64-4.023, F.A.C.
- An MMTC may only use sponsored, paid, or targeted advertisements on platforms that allow the MMTC to select the age group of the target audience for the advertisement.
- An MMTC must not select any users under the age of 18 as the target audience for such advertisements. The MMTC must provide documentation evidencing compliance with this subparagraph within 72-hours of written notice from the department.
- If the department determines the MMTC failed to obtain prior approval of a sponsored, paid, or targeted advertisement, the MMTC shall, upon written notice from the department, remove the advertisement in question.
So, it appears that preapproval is required for ads on the newspaper’s website “pursuant to Rule 64-4.023, F.A.C.”, which outlines a “variance request procedure.” The platform must apparently also have an age-targeting selection.
Regarding pre-approval by OMMU, unfortunately, it appears to be a somewhat time-consuming process that involves the dispensary submitting the “variance request” form noted. My understanding is that the applicant completes each section of the form that is applicable, and attaches all required documentation based on each section’s requirements. In sum, the dispensary advertiser should be familiar with preapproval, but, if not, I do have additional info. that may help.
As for print advertising, the underlying statute only applies to internet advertising and is silent on print-only ads, which seemed unregulated under that law, as you note. However, the emergency rule states that except for advertising cited in the rule, “No other advertisements or marketing are permitted.” As a result, it is unclear to me whether print-only ads would be allowed by DOH without preapproval.
Q. Our town manager has denied us a hurricane re-entry pass.
The town issues hurricane re-entry passes to residents and business owners in town each year for the event of a hurricane. If the town closes the island to visitors in a hurricane, only those with hurricane re-entry passes are allowed in.
Our office used to be located just outside of town limits though we always received a hurricane re-entry permit under previous town managers. We lost our office after Hurricane Ian.
The sheriff’s office checks motorists and pedestrians for hurricane re-entry passes during such events and could deny us entry.
Do we have a way to protest this denial of a hurricane re-entry pass ahead of time or do we announce our First Amendment right to free press when stopped by a deputy in the event access to the beach is limited?
A. I would go ahead and contest the denial of the pass ahead of time and not wait until being stopped.
In general, while local governments can restrict areas for safety, denying the press a re-entry pass entirely—especially when other essential personnel or residents are granted access—
can be challenged as a violation of the First Amendment right to gather news.
Further, you might let them know that “nothing in the state Emergency Management Act,” can be construed to “interfere with dissemination of news or comment on public affairs” (although communications facilities or news organizations, including newspapers, may be required to print public service messages in connection with an emergency.) Fla. Stat. § 252.33.
Q. Our city council members voted today to place a charter amendment on the November ballot that would provide that the mayor is not a member of the city council. The city attorney and mayor referenced the intent, which is to exempt him from Sunshine law requirements that apply to council members so that he could build consensus outside of open council meetings. Is this permissible?
A. Generally, if a charter is rewritten to make the mayor a purely executive official (like a city manager) with no voting, tie-breaking, or veto powers over legislation, private discussions regarding purely administrative matters may be permitted.
However, there are a couple of limitations in this area, as follows:
First, the mayor still cannot meet privately with a council member if they act as a “conduit” or intermediary to pass thoughts, opinions, or votes between different council members. Doing so triggers a Sunshine Law violation.
Second, if the city council formally or informally delegates specific authority to the mayor to act or negotiate on its behalf (such as finalizing a major vendor contract), meetings between the mayor and staff/third parties regarding that specific task may become subject to the Sunshine Law.
Third, if the new charter structure gives the executive mayor the power to break voting ties on the council, the Florida Attorney General has ruled that the mayor is still subject to the Sunshine Law when discussing matters that could involve that tie-breaking vote.
There are several AG opinions in this area, for example, AGO 85-36.