If your organization is a federal grant recipient and uses social media to further its message, you should take note of a Government Accountability Office (“GAO”) decision issued last week: Environmental Protection Agency—Application of Publicity or Propaganda and Anti-Lobbying Provisions, B-326944 (Dec. 14, 2015).
In concluding the Environmental Protection Agency (“EPA”) violated lobbying restrictions applied to its federal funding, the GAO opined that such restrictions may be violated by merely providing a link to a webpage of another party that has content which the funded entity would be prohibited from generating itself. Opinion at 17-18, 23. Further, the GAO opined that a funded entity may be responsible for the content, including altered or new content, appearing on a linked webpage as long as the link remained active, not just the content that existed at the time the link was created. Opinion at 23.
Many federal grantees are subject to some form of prohibition against use of their federal funds for lobbying activities similar to the restriction faced by the EPA in this case. See, e.g. Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. 113-235, Div. G, Title II, § 503(b) (prohibiting use of Department of Health and Human Services funding for activities designed to influence federal or state legislation) (identical language in H.R. 2029 for fiscal year 2016, signed into law last Friday). While the GAO’s analysis is not novel – the Internal Revenue Service previously issued similar guidance in Revenue Ruling Revenue Ruling 2007-41 (Jun. 18, 2007) – it should serve as an important reminder.
Political issues seem to occupy a great deal of the contemporary online discourse, and it seems that to remain relevant, organizations of all types are increasingly engaging in interactive social media, “liking” or “retweeting” the content of others. In this dynamic environment, grantee organizations must manage the risk of inadvertently associating themselves with content that is, or which becomes subsequent to an initial association, problematic for them. Discretion should be used in endorsing the content of others; and when links are established, they should be periodically examined for as long as they are maintained.