The DoJ has issued new social guidelines to employees (Photo by J. David Ake/Getty Images)
Employees at the United States Department of Justice have been instructed not to post anything related to their official work on social media. The orders came after political appointees may have been a little too vocal in expressing their support for President Donald Trump while also hurling criticism at his opponents.
However, the new directive that was sent to U.S. Attorneys’ offices on Monday isn't really all that different from the past restrictions that were placed on DoJ employees. That included refraining from discussing non-public investigations or making politically-charged statements. In addition, employees have been told not to include their department titles on any social media posts or to repost or share official government information, even press releases.
Maintaining The Status Quo, Including the Hatch Act
In many ways, the directive is simply about maintaining the status quo within not only the DoJ, but the larger executive branch of the federal government.
"The Hatch Act prohibits political speech by federal employees while they are on duty. Obviously, there's widespread political activity by federal employees when they are off duty – campaigns regularly use federal employees to advocate for one candidate or another," explained Dr. Cliff Lampe, professor of information and associate dean for academic affairs in the School of Information at the University of Michigan.
"This policy, if it is applied to people's speech as government employees, is not much different than the status quo," added Lampe. "If, however, the department is starting to limit people's private speech outside of their government roles, that is a significant new direction and something that would be unprecedented as a restriction of people's rights to speech."
Dr. Matt Schmidt, professor of political science and national security at the University of New Haven, further suggested that the spirit of these laws is to draw a clear separation between speech as a private citizen and as a federal employee, but the goal of the separation is to preserve first amendment rights, not deny them.
However, one line in the new directive has stood out, namely that it said that employees must not use any social media "in a way that damages the efficiency of the department."
Schmidt suggested that the law is clear that in this balance of rights for federal employees the weight is clearly on the side of protecting the core right of free expression of opinion.
"In addition, the phrasing, 'damages the efficiency,' is presumptively illegal because it's insufficiently specific to stand up under a legal challenge," Schmidt explained. "But that's probably exactly what's intended: to provoke a court challenge that ended in a ruling cementing the department's power to enforce what is essentially a gag rule on free speech."
Moreover, the idea that social media posts by employees could cause harm to "the efficiency of the department" could be seen as misleading, whether intentional or not.
"This straw man fallacy is a misdirection from the real issue, which is the need to avoid a national or international incident from an avoidable mistake. Some politicians could learn something from practicing a little restraint on social media," warned Dr. Julianna Kirschner, lecturer in the Annenberg School for Communication and Journalism at the University of Southern California.
Does The Logan Act Also Fit Into This?
While the Hatch Act restricts the political activity of federal civilian employees and is meant to ensure that federal programs are administered in a nonpartisan manner, it only covers some of the content that government employees may post that could be concerning.
That is where the Logan Act may come into play, as it prohibits the unauthorized conduct of foreign policy.
"It says nothing about other speech, and federal employees have free speech rights just like any other citizen," said Schmidt. "The only branch with any kind of policy on this is the military, through the Uniformed Code of Military Justice. But even here, the policy is a balance of Americans' right to free speech and military needs. Members are free to express political opinions, including dissent towards the military and the government, but in their capacity as private citizens. They can't wear the uniform or present themselves under their military title and rank."
However, some restrictions should be applicable regarding social media use for Justice Department employees.
"Even though the Logan Act is over 200 years old, it covers the current situation involving social media. By using social media platforms, any government official can interact with agents of other governments, regardless of whether they intended to do so or not. Social media is public, despite its limits and claims of prioritizing user privacy," said Kirschner.
"Anyone using these platforms should assume that their posts can be found by others, including bad actors," she continued. "I call this content archive the 'digital bookshelf,' which involves everything discoverable about a user's online activity. Social media platforms have capitalized on memory-based functions like 'On This Day.'"
The danger is that users can access anything on the digital bookshelf either through public means or basic hacking.
"Therefore, anything posted by employees from the Justice Department and other governmental entities is technically up for grabs," Kirschner continued. "Social media has long posed problems for diplomacy, because the unfettered ways in which politicians have engaged platforms can create communication ripple effects. I won't name any names."
Quis Custodiet Ipsos Custodes?
This may be a case, too where the Latin idiom "who will guard the guards themselves?" serves as reminder that the directive may be more lip service than anything else.
"Like with any new policy, this will depend on what is enforced and how," said Lampe. "Already, any government employee has to be careful about what they say in public and how. People tend to forget that the First Amendment is about protecting people from government interference for speech, and that people speaking on behalf of the government don't actually have First Amendment protections."
Consequently, long-term government employees have a lot of experience monitoring what they say when it could be interpreted that they are speaking in their capacity as the government.
"In their private lives," added Lampe, "they have more freedom to speak as they see fit."