Social Media Raise New Questions Regarding Political Activity
By Capt. Wayde Minami, 175th Wing Public Affairs
/ Published August 30, 2010
BALTIMORE -- While warnings to military members regarding restrictions on partisan political activities are nothing new, the advent of social media has added some new wrinkles. As the political campaign season approaches, members must take care that their political activities in cyberspace don't land them in real-life hot water.
The Hatch Act of 1939 applies to federal civil service employees, including military technicians, while Department of Defense Directive 1344.10, Political Activities by Members of the Armed Forces, applies to uniformed members in active duty status, such as AGR personnel. Both specify what partisan political activities are and are not allowed.
While traditional, drill-status Guardsmen are not subject to the Hatch Act or DoDD 1344.10 while not in a military status, they need to be familiar with the rules in case they're ordered to active duty. In addition, ANG personnel who run for political office may not use their military status as a political selling point (e.g., no use of government facilities and no campaigning in uniform). If a member of the National Guard is called to active duty, additional restrictions will apply.
According to the U.S. Office of Special Counsel, which interprets the Hatch Act and prosecutes violators, there have been many questions regarding how the law applies to social media, such as blogs, Facebook and Twitter.
While full-time members are not prohibited from expressing their political opinions, they are prohibited from engaging in "political activity" during duty hours. According to the OSC, political activity includes "activity directed at the success or failure of a political party, partisan political candidate, or partisan political group." Full-time members are also prohibited from using their official authority or influence to affect election results and are not allowed to solicit, accept, or receive political contributions at any time.
The implications for social media are significant:
While political blogging is allowed during off-duty hours, OSC says authors of blogs must be careful not to use their official positions and duty titles "to bolster the opinions concerning political parties, partisan candidates, or partisan groups that they post on their blogs." And because the Hatch Act prohibits fund raising at any time, bloggers may not "suggest or ask that readers of their blogs make contributions to a political party, partisan political candidate, or partisan political group. Further, they should not post link to the contribution page of any of those entities' or individuals' websites."
These restrictions also apply to other forms of social media, such as Facebook and Twitter, but there are added twists relating to the "friend," "like," and "follow" capabilities these applications offer.
Supervisors who have subordinates on their "friends" list must be especially careful about how they post political opinions. According to OSC, political statements by supervisors that are directed towards all their friends are permitted, while those directly only to subordinates or subgroups that include subordinates are prohibited. "We see this activity as being akin to the supervisor placing a sign in his yard that promotes a candidate but that, incidentally, may be seen by his subordinates."
Posting links from personal Facebook or blog pages during off-duty hours is permitted, but with restrictions. Members may post links to a partisan party, candidate or group's main page, but because of the restriction on fundraising, members may not post links that "lead directly to the page of the website on which readers can contribute money," according to the OSC.
A further complication concerns how members should respond if friends post political comments on the member's social media site. According to the OSC, members are not responsible for actions of third parties, and they do not need to remove comments or links their friends might post. However, members must still refrain from adding comments that might violate the law by encouraging others to donate at the link provided.
Members are allowed to become "friends" or "fans" of partisan groups or individuals on social media sites, but must refrain from political activity during duty hours, such as encouraging others to become friends or fans of those groups. In addition, because members are barred from engaging in fundraising, they may not forward invitations to fundraising events to others, even when off duty.
A final twist concerns fictional identities. While a person could create a social media account using an alias, full-time members must remember that the restrictions in the Hatch Act and DoDD 1344.10 apply regardless of whether the political activity is done under an assumed name or the person's real identity.
While this article highlights aspects of the use of social media for political activity by full-time members, it is not intended as legal advice. Members with specific questions should contact the 175th Wing staff judge advocate at x6335 during UTA weekends.