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Federal Employees Can Express Support for Black Lives Matter, Watchdog Says

2020-07-17 03:07:16
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Federal employees may express support for Black Lives Matter in the workplace, an independent federal agency said this week.

The finding came weeks after President Trump denounced Black Lives Matter as a “symbol of hate” and Vice President Mike Pence refused to say that “Black lives matter” during an interview on Juneteenth, the holiday that commemorates the end of slavery in the United States. Last week, Attorney General William P. Barr said the phrase “Black Lives Matter” was “distorting the debate, to some extent.”

But the Office of Special Counsel, an independent agency headed by a Trump appointee, said that federal employees can use the phrase “Black Lives Matter” without violating the Hatch Act, which restricts political activity by government employees.

In a memo, the office said that using the term Black Lives Matter did not amount to “inherently political activity.” And the Black Lives Matter Global Network, which owns BlackLivesMatter.com and is arguably the most prominent organization affiliated with the movement, is not “a partisan political group,” the office said.

“BLM is a ‘hot-button’ issue and both politically and culturally salient,” the office wrote in a memo on Tuesday. “But BLM terminology is issue-based, not a campaign slogan. Therefore, using BLM terminology, without more, is not political activity.”

The finding came as support for the Black Lives Matter movement has increased dramatically since George Floyd was killed by the Minneapolis police. His death touched off worldwide protests against police brutality and systemic racism.

The office said it had received numerous inquiries from federal employees who were concerned that they would violate the Hatch Act if they showed support for Black Lives Matter at work.

The Hatch Act generally prohibits employees from using or displaying political party and partisan campaign slogans.

The office said, for example, that federal employees could not use Mr. Trump’s campaign slogan, “Make America Great Again,” in their email signatures while Mr. Trump was running for re-election.

Similarly, employees would have violated the Hatch Act by using Hillary Clinton’s campaign slogan, “Forward Together,” in the workplace during the 2016 campaign, the office said.

But other slogans or phrases related to issues — even politically charged issues — do not generally meet the definition of political activity, the office said.

For example, the Office of Special Counsel repeatedly found that federal employees who used the phrase “Tea Party” during the Obama administration did not violate the Hatch Act, because that movement arose in large part as a response to federal taxing and spending policies. The office said it had found that the Tea Party movement was not “inherently partisan,” although at least one group affiliated with the movement was.

“The Tea Party provides a close analogy for BLM,” the office said. “Like the Tea Party, BLM is a blanket term for a leaderless movement that apparently arose in response to social concerns.”

And like the Tea Party movement, the Black Lives Matter movement includes many people and groups who can claim affiliation without having to be formally accepted, the office said.

“And to the extent that either movement’s motivating principles can be definitively established,” the office said, “it appears that they both were or are focused primarily on raising awareness of, and achieving policy changes for, their issues of concern.”

As such, federal employees may display Black Lives Matter paraphernalia in the workplace and may invite others to a fund-raiser for the Black Lives Matter Global Network, the office said. But they may not say, “If you believe that Black Lives Matter, then you should vote for” or against a candidate in November.

The office noted that the Black Lives Matter movement, which gained prominence after a series of high-profile police killings of Black Americans in 2013 and 2014, had become a rallying cry for a variety of protesters and groups that seek to combat racism.

“BLM is thus an umbrella term for a constellation of ideas, objectives, and groups,” the office wrote. “There is no ‘leader’ of the BLM movement.”

It also said that the Black Lives Matter Global Network, as a group, opted not to endorse any candidate or political party in 2016, and expressly disavowed a Democratic Party statement of support. In the 2020 campaign, the group is promoting a hashtag, #WhatMatters2020, that seeks to increase voter turnout among its supporters, and its website does not contain any candidate endorsements, descriptions of partisan political activity or requests that visitors engage in partisan political activity, the office said.

The Black Lives Matter Global Network and the White House did not have any immediate comment on Thursday.

Two-thirds of Americans, including 60 percent of white people, support the Black Lives Matter movement, according to a Pew Research Center poll released last month. But the poll also found a sharp partisan divide in Americans’ views of the movement.

More than 90 of Democrats and those who lean Democratic support the movement, compared to 40 percent of Republicans and those who lean Republican, according to the poll.

Mr. Trump, who has a long history of falsely portraying some Black Americans as dangerous or lawless, called Black Lives Matter a “symbol of hate” on July 1 after Mayor Bill de Blasio of New York announced plans to paint “Black Lives Matter” on the street outside Trump Tower in Manhattan.

The Office of Special Counsel is an independent investigative and prosecutorial agency that enforces civil service laws that govern the federal work force.

Despite its name, it has nothing to do with the former Special Counsel’s Office headed by Robert S. Mueller III, which investigated potential links between the Trump campaign and the Russian government. Since 2017, the Office of Special Counsel has been led by Henry J. Kerner, whom Mr. Trump appointed.

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