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I noticed a recent post from a local county school board's official social media account - authored by the Director of Schools (superintendent equivalent position) - advocating a position in regards to legislation that is being considered by our state government. I was curious whether it is legal for someone in such a position to make such a post on the district's official social media account?

The state in this case is Tennessee, though I'm curious about both Tennessee and U.S. federal law.

I did see this informational page by the University of Tennessee's Institute for Public Service, which says,

Another law that restricts the political activity of certain county employees is the federal Hatch Act. The federal Hatch Act restricts the political activity of local government officials and employees who work in connection with programs financed in whole or in part by federal loans or grants. The act applies to a local government official or employee if the individual “performs duties in connection with an activity financed in whole or in part by federal funds.” Special Counsel v. Gallagher, 44 M.S.P.R. 57, 61 (1990). If an individual meets this standard, the Hatch Act applies even if the person’s salary does not include any federal funds.

I would think that a school board superintendent would be a position that would qualify as one which "performs duties in connection with an activity financed in whole or in part by federal funds," given how much funding comes to U.S. public schools from various programs of the federal Department of Education, though I'm not sure what (if anything) case law and such may have to say on the subject.

Assume for the sake of this question that the post in question is related to schools (public and otherwise) in the state, but it is specifically advocating for or against a particular public policy currently under consideration by the state legislature and Governor. Assume also that the post was focused on an advocating for or against a particular policy, not campaigning for or against a particular candidate for public office. Though, in case it matters, assume that the post does mention by name a particular state political official (Governor or legislator) who is proposing the policy in question.

Is it legal to use official department social media accounts to advocate for political positions in such a case in Tennessee?

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  • You seem to be conflating policy with politics. Advocating for the passage of a bill in the legislature isn't a political message.
    – bdb484
    Feb 8 at 8:01
  • @bdb484 I rather think that advocating a position on a pending bill very much is a political message, but the Hatch act explicitly does not apply to the expression of political opinions; it only restricts certain political activity (running for office, making or soliciting campaign contributions, that sort of thing).
    – phoog
    Feb 8 at 12:34
  • Certainly there are definitions of "politics" that are broad enough to cover anything a politician does, including lawmaking. But I suspect OP is asking about political limitations on public employees/public funds. In that universe, saying that a bill is good or bad is not likely to fall within the definition of "politics."
    – bdb484
    Feb 8 at 19:21
  • On re-reading your comment, I think we're saying the same thing. So..... +1?
    – bdb484
    Feb 8 at 19:22
  • @bdb484 Making policy is the goal of politics, by definition. Advocating for (or against) the passage of a bill in the legislature is a political message by the normal definitions of those words (though not necessarily by the definitions of some particular law.) The question is just whether it is legal to use public (government) resources to express such a political message. The question is not stating that it is or isn't permissible, but rather asking whether it is (taking into account both federal law and state law.)
    – reirab
    Feb 8 at 19:32

1 Answer 1

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If we assume that the Hatch act applies to the county employee, the question becomes whether it applies to the conduct in question. It does not.

The Hatch act primarily concerns participation in political campaigns for elected office and in referendums. For example, it generally prohibits running for elected office and participating in partisan campaigns. It also restricts making and soliciting campaign contributions and prohibits the use of one's office to influence elections or individual voters. (There are many exceptions applying to specific circumstances.)

The act also provides

(c) An employee retains the right to vote as he chooses and to express his opinion on political subjects and candidates.

This must be all the more true if the employee is the chief executive of a government body and is expressing in that official capacity the official policy of the body, although it's not clear from the question whether that is the case here.

In any event, the expression of political opinions is expressly not regulated by the Hatch act.

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  • Just to be clear, the question is not about whether one can express political opinions using their own resources on personal time - obviously, that is protected speech under the First Amendment and any law to the contrary would itself be unconstitutional. The question is particularly about using government resources to advocate for or against some political goal. In this particular case, the government resource in question was a government organization's official social media account (as opposed to the official's personal social media accounts.)
    – reirab
    Feb 8 at 19:20
  • @reirab In either case, the primary law in question is the Hatch Act, so you need to ask whether the conduct in question is a "prohibited activity" under 5 U.S.C. 7323. The answer is pretty clearly "no," whether the government employee is using an official or personal social media account.
    – bdb484
    Feb 8 at 19:26
  • @bdb484 Hmm... To be honest, that really doesn't seem clear to me at all, at least with regards to (a)(1). It does not seem at all clear to me that using one's official authority and influence (both in this case) to advocate for or against a particular policy - especially one with a heavy partisan divide - while naming particular candidates for office who are advancing that policy does not run afoul of (a)(1). (c) does not seem to apply to this situation, but rather to situations where one is engaging in political speech outside of one's official duties and with one's personal resources.
    – reirab
    Feb 9 at 0:54
  • Well, that hypothetical adds a lot of new facts that you didn't ask about, doesn't it?
    – bdb484
    Feb 9 at 6:35
  • @reirab if the policy statement is an official statement then the question is whether it reflects official policy and whether the school board is authorized to adopt the policy. If the officer's statement isn't official policy then the officer has violated some other law, no doubt a state law governing the conduct of public officers, or perhaps the terms of employment. If the statement is official policy then it's a matter of what state law has to say about government bodies adopting and expressing policy positions. A personal statement using public resources is also a matter of state law.
    – phoog
    Feb 12 at 16:58

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