Page:Black Lives Matter and the Hatch Act.pdf/1

U.S. OFFICE OF SPECIAL COUNSEL
1730 M Street, N.W., Suite 218
Washington, D.C. 20036-4505
202-804-7000

July 14, 2020

Black Lives Matter and the Hatch Act

I.INTRODUCTION

Beginning in late May 2020, protesters began organizing large demonstrations across the United States. The immediate precipitating event was the videotaped police killing of George Floyd, a black man. However, the demonstrations are largely focused on the issue of racism in America more broadly and not limited to Mr. Floyd’s death alone. The phrase “Black Lives Matter” (BLM) is frequently used by protesters and associated with the demonstrations. Additionally, BLM-related organizations have supported and/or organized demonstrations.

In response, numerous federal employees have asked OSC whether BLM or related materials raise any Hatch Act concerns when used or displayed while on duty or in the federal workplace. The questions raise two distinct but related issues. The first is whether using BLM terminology is inherently political activity. And the second is whether the Black Lives Matter Global Network (BLMGN)—the owner of www.blacklivesmatter.com and arguably the most prominent BLM-related organization—is a partisan political group. As further described below, using BLM terminology is not inherently political activity and BLMGN is not currently a partisan political group.^[1] Accordingly, the Hatch Act generally allows employees to engage in BLM-related activity while on duty or in the workplace. But, as described below, employees are still prohibited from combining BLM-related activity with “political activity” while on duty or in the workplace and from engaging in partisan political fundraising in connection with BLM-related organizations. “Political activity” is an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.^[2]

II.BACKGROUND OF BLM

As a social movement, BLM gained prominence following a series of high-profile killings of black Americans in 2013 and 2014 and, in particular, the acquittal of George Zimmerman for the killing of Trayvon Martin. The movement appears to have begun organically on social media. The phrase “Black Lives Matter” then became a rallying cry for

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1. This memorandum analyzes BLMGN based upon its activities at the time of writing. If BLMGN’s activities change in the future, then OSC would need to reevaluate the group based upon those changed circumstances.
2. 5 C.F.R. § 734.101.