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Can Feds Comment on Roe v. Wade?

The Hatch Act limits political speech, but not personal opinions expressed about politically charged topics.

Working for the government is a professional distinction – or obligation – that can be difficult to understand if you haven’t done it. But even if you are a federal worker, sometimes it's hard to know where the boundary lines are in what you can and cannot say or post on social media. This week’s leak of a pre-decisional draft of a Supreme Court decision on Roe v. Wade has led to a flood of emotions and opinions. But whether it’s water cooler talk or a social media post, government employees are free to comment – however, they need to be careful.

Government employees are likely all aware of the Hatch Act, which limits political speech by both federal employees and government agencies. It specifically applies to individuals using their positions of privilege to help influence an election. 

It doesn’t, however, apply to topics such as abortion, that may be politically charged, but don’t actually involve advocating for a particular candidate. At its inception, the Hatch Act envisioned the arena of water cooler talk and political speech in the office. In the era of remote work and public social media profiles, many government employees wonder if the Hatch Act governs what they post on Facebook or Teams. The fact is the Hatch Act still applies, but it applies specifically to political speech, not partisan or hotbed topics. 

“The Hatch Act does not prohibit employees at any time, including when they are at work or on duty, from expressing their personal opinions about issues, even if politically charged, such as healthcare reform, gun control, or abortion, because such expressions do not constitute political activity,” said Ana Galindo-Marrone, a Hatch Act legal expert who works for the Office of Special Counsel. “However, such expressions would constitute political activity if tied to candidates or political parties. For example, while on duty or in the workplace, an employee may not say, ‘If you disagree with healthcare reform, you should support candidate X.’”

Joe Jabara, attorney and U.S. Air Force veteran, also advises individuals to put a disclaimer in their public profiles stating “the opinions stated are solely my own and not meant to represent those of the agency I work for” along with leaving out official titles or places of employment if possible. 

“The idea of what is ‘on duty’ varies greatly so those in the military, especially with supervisory authority, should tread very lightly…when discussing on social media with those who may work for them,” Jabara said.

Beyond the Hatch Act, however, agencies may have their own rules governing public communication, and individuals – particularly those making public statements – should consider reaching out to their agency’s public information or public affairs offices for other guides on protected vs. unprotected information.

Listen to our conversation with Lindy Kyzer about this and other security clearance-related issues on Friday's episode of GovExec Daily.