TechSoup@PND

Through an arrangement with TechSoup, PND is pleased to offer a series of articles about the effective use of technology by nonprofits.

Can I Tweet That? Charities and Social Media in an Election Year

Can I Tweet That? Charities and Social Media in an Election Year

Increasingly, we connect to each other through social networks, perhaps this year more than ever before. Facebook and Twitter are ubiquitous, not to mention Snapchat, Instagram, Tumblr, and the many other platforms that have large user bases. Despite this, the IRS has not published guidance that specifically addresses the use of social media in the context of election-related activities conducted by 501(c)(3) charities.

A previous post on the TechSoup blog described how charities can conduct issue advocacy and voter education safely in an election year. This post addresses considerations for the use of social media when engaging in these activities.

The IRS has addressed the issue of website content: if an organization posts something on its website favoring or opposing a candidate for public office, the organization will be treated the same as if it distributed printed material or oral statements favoring or opposing a candidate. We expect that the same rule applies to a charity's use of social media. Without further interpretation from the IRS, we are then left to apply the general guidance we have about remaining nonpartisan.

In other words, a charity may not endorse or oppose a candidate on Twitter or Facebook any more than it could on its website or in an email. While a tweet may be limited to 280 characters, the same "facts and circumstances" approach applies to whether the tweet might constitute partisan interference in an election. For instance, a post that mentions a candidate and expresses disapproval of the candidate's positions or actions, especially shortly before an election, is at risk of being deemed partisan.

Here are a few points to keep in mind when using social media in particular.

1. Treat all posts as communications that will be available permanently. Social media can be a very effective means of communicating directly with the public and quickly in response to current events. But while a post may be written informally and published with little or no oversight, the charity is still responsible for the content. Even if deleted by the charity, a post can be reproduced in an audit or seized by opponents as evidence that the charity engaged in impermissible partisan activities. Any post therefore should avoid showing a bias or preference for one candidate over another. In addition, if the post contains any links, whatever is at the other end of the link could be deemed part of the post, so the charity should vet the content first.

2. Consider that liking and retweeting could create risk. A charity might be held responsible for any content that it "likes" or retweets. A charity therefore should avoid liking or retweeting communications that show bias in favor of or opposition to a candidate. Friending or following a candidate also could suggest that the charity supports the candidate. Therefore, until we have further guidance, it is safer not to like, friend, or follow candidates or their campaigns.

3. Establish the charity's social media presence. Individuals can personally participate in political campaigns; the issue is whether the acts of individuals can be attributed to the charity. If a charity is "paying" staff members to prepare and post statements on their personal social media accounts, the IRS likely will attribute the activity to the charity. Personal posts therefore should be done on an individual's own time and generally not involve the use of the charity's resources (such as a laptop, email account, phone, or other technology).

Even if charity resources are not used to prepare and post updates to social media, use of a personal social media account for work can blur the line between a charity's activities and an individual's personal political views. For that reason, it's better for charities to establish their own social media presence than rely on the social media accounts of staff.

A charity may want to establish a social media policy regarding who can post on behalf of the organization. The policy also should address what social media activity may not be conducted on paid staff time and whether personal posts under certain circumstances should include a disclaimer to clarify that the individual is speaking only in his or her personal capacity and not on behalf of the charity.

4. Address partisan public comments that may appear on a charity's social media page. A charity should consider in advance how it will handle partisan messages from outside sources it does not control. One approach is to moderate all social media channels and delete any partisan or otherwise inappropriate messages. If a charity retains this kind of control over what is posted, it is taking responsibility for the content. Monitoring an active site also can be time-consuming.

Alternatively, the charity could provide a public forum for comments without asserting editorial control, in which case outside communications are less likely to be attributed to the charity. The charity should make clear that it is not screening or endorsing any posts. It might also include a general disclaimer stating that, as a charity, the organization does not endorse or oppose candidates or otherwise intervene in elections and prefers that people not post partisan comments. Maintaining such a site requires less work; however, the site could end up being overrun with partisan commentary, and no one really knows how effective a disclaimer will be in such a situation.

In any case, the organization should be consistent in how it handles outside posts, regardless of the content. For instance, a charity should not remove messages that disagree with its position on an issue but only post a warning in response to others.

5. Don't forget about lobbying limits. The IRS lobbying definitions apply to a charity's social media posts. For instance, posts that refer to specific legislation, reflect a view on it, and contain a "call to action" may count as grassroots lobbying communications. Specific legislation includes confirmation of nominees for political or judicial appointments and anything else voted on by Congress or a state or local legislature. It also includes proposed legislation. While social media may be an inexpensive means of communication, a charity's lobbying limits still need to be considered.

As most charities are aware, they are strictly prohibited from engaging in political campaign intervention, unlike lobbying, which may be undertaken as an insubstantial part of a public charity's activities. However, the prohibition on political campaign intervention does permit a range of communications and actions related to, or occurring during, an election. As Election Day rapidly approaches, understanding the rules that apply can help charities safely address issues of importance to them.

David A. Levitt is a principal at Adler & Colvin.