The Hatch Act and the World of Social Media

Anna A. Vlasova is an Associate General Counsel at the U.S. Department of the Interior, Office of Inspector General. Her focus areas are government ethics and criminal law. She received her J.D. from The Catholic University of America, Columbus School of Law and is a member of the American Bar Association Young Lawyers Division.

Social media is continuously growing and allowing users to communicate and connect in new ways. But as social media grows, legal issues follow. The Hatch Act1 limits certain political activities of most executive branch employees ("employees"), including those conducted  while using social media sites both in an official capacity while on duty and in a personal capacity.

Facebook, Twitter, and other social media sites make it easy to engage in political activity. Political activity can include anything from liking a candidate's webpage on Facebook, to following a political candidate on Twitter, to campaigning. The multitude of communication options available on social media websites, such as private messages, posts, "likes," and "follows" add an extra element of confusion to what is allowed under the Hatch Act. This article discusses the main rules and guidelines that apply to the use of social media by employees, but it is not all-inclusive.

There are several restrictions imposed by the Hatch Act that employees should remember when using social media. First, employees are prohibited from soliciting, accepting, or receiving campaign contributions2 at any time - meaning both on and off duty. Further, they may not use their official authority or influence to affect the result of an election.3 Also, they may not solicit or discourage political activity of anyone with business before the agency.4 Finally, they may not engage in political activity while on duty, in a government office, or in uniform.5

Employees may list official title and place of employment on their Facebook Profile, and even fill-in the field provided for "political views." Employees may even express support for a political party or candidate, provided they do so during off-duty hours. However, they should be careful not to suggest or ask that others contribute to a political party and not to post links to a contribution page, as this would violate the anytime ban on soliciting political contributions.6

Facebook allows individuals to post on each other's profile pages without seeking prior approval for what they are going to post. Employees, however, are not responsible for comments that third-parties make.7 Thus, if another user posts a link to a contribution page for a political party on an employee's profile page, the employee is not required to remove the post.8 Employees, however, should be careful not to promote such third-party posts by asking others to contribute.

In addition, while it is acceptable for supervisors to advocate for or against a political party on social media sites, even if they are "friends" with their subordinate employees, they may only do so in a statement addressing all of their "friends" and not just the subordinate employees. Therefore, while a supervisor could post a status advocating for a political party on his or her personal Facebook page during off-duty hours, he or she could not send a direct message to a subset of friends that includes subordinate employees.9

Note that the Hatch Act and the same rules apply when an employee uses an alias on Facebook or for a blog.

Conclusion

It is critical that federal employees use social media tools in a responsible manner. More information about this topic can be found in guidance from the U.S. Office of Special Counsel, dated April 4, 2012.10

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1 The Hatch Act, U.S. Code 5, § 7321-26.

2 Id. § 7323(a)(2).

3 Id. § 7323(a)(1) .

4 Id. § 7323(a)(4).

5 Id. § 7324.

6 U.S. Office of Special Counsel. Frequently Asked Questions Regarding Social Media and the Hatch Act. April 4, 2012. http://www.osc.gov/documents/hatchact/federal/Social%20Media%20and%20the%20Hatch%20Act% 202012.pdf.

7 Id.

8 Id.

9 Id.

10 Id.

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