If you’re like most security clearance holders, you probably haven’t given much thought to the wording of the questions found in Section 29 of the SF-86 Form. The answers to these “Association Record” questions are reflexively “no” for most applicants, and for good reason. If you’re advocating the overthrow of the U.S. Government by force, terrorism, or other forms of violence, you’re unlikely to be interested in working for Uncle Sam unless you’re trying to infiltrate as an insider threat.
That being said, perhaps the wording of those questions does merit some attention, if for no other reason than it helps inform an understanding of the line between acceptable and unacceptable conduct for politically-active (or just very opinionated) clearance holders.
Understanding Legal Jargon
A close read of the questions shows that they include carefully worded legal jargon like “specific intent to further such activities” and “an awareness of the organization’s dedication to [accomplish its objectives with violence].” That’s because the 1st Amendment to the U.S. Constitution protects a wide swath of speech, opinions, and associations from government infringement. And while longstanding Supreme Court precedent on security clearances says that they are a privilege, not a right – giving the government enormous leeway to deny or revoke them – a narrow means of accessing the courts remains by demonstrating that the denial or revocation of a clearance is based on a “colorable constitutional claim”.
These days, it seems that the American public is increasingly polarized along political lines and that social media has significantly aggravated the problem. Ugly, spiteful commentary has become a hallmark of the social media sewer. Nonetheless, even that type of speech is constitutionally protected in most cases, as long as it doesn’t constitute a hate crime, obscenity, threats, harassment, incitement to violence – or, for the purpose of security clearance, advocate that a certain group of individuals be denied their civil rights or otherwise illegally discriminated against. (Note: Individuals subject to the Uniform Code of Military Justice are subject to additional restrictions – see below).
Social Media and Your Security Clearance
I haven’t yet seen a problem with clearance holders explicitly advocating or inciting illegal conduct on social media, but I do occasionally see situations where people have, in an ill-conceived moment of rage, come awfully close to the line with comments that imply a desire to see harm befall people on the opposite side of an issue. These cases can present closer legal calls and raise other issues, especially if the recipient of the speech is a work colleague. Similarly, any social media posts made by a government employee during work hours can implicate the Hatch Act.
Outside of the above situations, civilian clearance holders, including contractors, have significantly more leeway with social media speech than members of the Armed Forces, who are bound by DoD Instruction 1325.06 and its extraordinarily broad definition of “extremist activities.” But even civilian clearance holders need to be aware that federal agencies are now taking a much more aggressive (and some would argue, political) stance on clearance-holder speech they deem “extremist”. So much so, that this past year alone my office has fought several unconstitutional clearance revocation attempts on behalf of clearance holders engaged in protected speech. An ultimately successful appeal comes only after a long road to get there, and an expensive, stressful one at that.
I’m not suggesting that any clearance holder should feel constrained from participating in political discourse, whether on social media or otherwise. I am, however, suggesting that clearance holders of all political stripes keep in mind that there is a fine line between hyperbole and perceptions of extremism – one that isn’t always clear in the fog of the moment. That’s what’s so dangerous about social media: it’s easy to instinctively launch a clapback at people with opposing opinions or publish statements that don’t age well without time to think first. And unlike verbal statements, there’s no denying exactly what was said or the context.
This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied. Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation.
