The Brown Act (the “Act”) generally requires meetings of legislative bodies to be open and public. The Act strictly prohibits serial meetings, which are communications that each involve less than a quorum of the legislative body, but taken as a whole involve a majority of the members. It likewise prohibits a majority of members meeting without following notice, agenda, and accessibility requirements. The growing influence of social media in recent years left an area of ambiguity for members of legislative bodies communicating on such platforms.

On September 18, 2020, Governor Newsom signed into law Assembly Bill 992 (“AB 992”), providing some guidance on this issue. The new law amends the Government Code to extend the Act’s requirements to certain types of communications for legislative body members using platforms such as Snapchat, Instagram, Facebook, Twitter, TikTok, and Reddit.

Government Code section 54952.2 is now amended to specify which types of online communications legislative body members may engage in, and which they may not. AB 992 applies to any “Internet-based social media platform,” meaning an online service that is open and accessible to the public, and includes only services which are accessible to the public free of charge and without online barriers. AB 992 allows public officials to communicate freely with members of the public on these platforms. For example, legislative body members may answer questions, provide information, or solicit information from the public on issues within their jurisdiction.

However, AB 992 contains two important prohibitions. First, a majority of members may not use social media to “discuss among themselves” matters of business within their jurisdiction. “Discuss among themselves” refers to all types of communications, including “digital icons that express reactions to communications,” such as emoji or “liking” a post. This is similar to other provisions of the Act which prohibit a majority of members meeting without notice, agenda, and accessibility requirements.

Next, AB 992 includes a communication restriction that goes beyond the previous limits on serial communications. Specifically, AB 992 now prohibits members from responding directly to something made, posted, or shared by another member of the legislative body on a social media platform within their subject matter jurisdiction. For example, commenting on a Facebook post by another city councilmember regarding a city matter would now be a violation of the Act, regardless if a majority of members ultimately participate in the communication.

Legislative body members should already be very careful about their activity on social media, something AB 992 further emphasizes. These new provisions will sunset on January 1, 2026, when Section 54952.2 of the Government Code will return to the prior language. However, regulation of social media communications is likely to only increase in the coming years.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950 or email Doug White at Doug@whitebrennerllp.com, Barbara Brenner at Barbara@whitebrennerllp.com, or Nubia Goldstein at Nubia@whitebrennerllp.com.