Nonprofits and Social Media: Clear Law Institute CLE

Social Media Concept. Woman using modern technology for communication

Social media is a rising trend, a declining trend, just another communication, the Wild West. Each of these statements may ring true, depending on the context. But there’s no doubt that nonprofits are using social media and many would benefit from more informed counsel and legal advice about crafting social media policies and appropriately managing risks. I recorded a continuing legal education (CLE) program on Nonprofits and Social Media for Clear Law Institute last Friday. Here is a rough outline of the major topics we covered, including some links to some resources I hope you’ll find helpful:

Social Media and Nonprofits: What You Need to Know


Social Media Social Networking Technology Connection Concept

I’ll be presenting Social Media and Nonprofits: What You Need to Know with Carrie Garber Siegrist of Venable LLP on July 21 at 12:00 – 1:30 pm PT for the American Law Institute.

Why You Should Attend

Social media is a powerful tool for nonprofits, small and large. Effective use of social media can increase fundraising, further an organization’s mission, help to recruit volunteers, educate the public, and create cause awareness. However, nonprofit board members, nonprofit employees, and outside counsel advising nonprofits must be aware of the risks associated with social media use. Attend this course, Social Media and Nonprofits: What You Need to Know, that covers some of the legal issues that may arise in connection with a nonprofit’s use of social media and some steps that can be taken to better protect nonprofits.

What You Will Learn

This program shares strategies and tips on ways to avoid potential legal issues arising from social media use, while still leveraging all its benefits. Topics of discussion include:

  • Creating, maintaining & implementing a social media policy
  • Using of social media for fundraising
  • Social media use by nonprofit volunteers & agents
  • Responding to social media inquiries
  • Monitoring your social presence

You’ll find more information about social media-related legal issues on our blog here.

Popular Posts from 2013



To close the year, here are links to some of the most popular posts from 2013 (in chronological order):

  1. CalNonprofits: Step by Step Guide for Starting a Nonprofit
  2. 10 Issues to Address in Your Nonprofit's Social Media Policy
  3. Starting a Nonprofit: 10 Considerations in Electing the Initial Board
  4. Is The Way We Think About Charity Dead Wrong? Some Legal Thoughts
  5. Nonprofit Social Enterprises: Introduction
  6. IRS Report Focuses on Issues with Nonprofit Unrelated Business Income and Compensation
  7. Alliance for Community Media National Conference (Key Issues in People Management)
  8. Overhead Myth: Thoughts from a Nonprofit Attorney
  9. Private Benefit Doctrine – A Few Examples
  10. Starting a Nonprofit: The Value of Making the 501(h) Lobbying Election

Why You Need a Social Media Policy – Social Media for Nonprofits


I had the pleasure of presenting "Why You Need a Social Media Policy" at the Social Media for Nonprofits Conference in Palo Alto last Thursday. Great conference, engaged crowd and lots of questions. Thanks to co-founder and executive director Ritu Sharma and co-founder Darian Heyman for their tireless work putting it all together.

Related Resources:

Defamation – Publishing Information that Harms Another's Reputation (Digital Media Law Project)

Facebook firings – NLRB AGC Report (May 30, 2012) – includes sample employee social media policy

Intellectual property infringement – Copyright & Fair Use Basics for Nonprofits (Public Counsel)

Charitable registration - The Unified Registration Statement

Advocacy – Influencing Public Policy in the Digital Age (Alliance for Justice)

Ownership of social media accounts - Writer Sued for his Twitter Followers Settles Case (Mashable)

Damage control - Case Study: American Red Cross Twitter Faux Pas (The Fundraising Journal)

Miscellaneous - Does Your Organization Have Social Media Guidelines for All Staff? (Beth Kanter)

Social Media for Nonprofits SlideShare channel (207 SlideShares and counting)

Social Media for Nonprofits – Silicon Valley – June 13, 2013


SM4NP v2

I'm very excited to be part of a great and eclectic lineup of speakers at Social Media for Nonprofits' 2013 Silicon Valley Conference presented and hosted by Microsoft on Thursday, June 13. Beth Kanter will be delivering the keynote: The Dirty Little Secret to Getting Better Results from Social Media. 

I'll be discussing why nonprofits need social media policies:

Understanding the rules that impact social media communications is critical to creating and implementing the right strategies. Sound policies will help social media strategists and users contribute with confidence to advance the organization’s mission without exposing it to future harm.

Executive Director Ritu Sharma and former Executive Director of the Craigslist Foundation  Darian Rodriguez Heyman co-founded Social Media for Nonprofits, the world’s only conference series dedicated to social media for social good that to date has earned a 92% approval rating from over 2,500 nonprofit leaders across the USA.

Previous posts on nonprofit social media available here.

Presenters & Resources:







Alliance for Community Media National Conference (Part Two)




Our second post with resources to be referenced in our session at the 2013 Alliance for Community Media National Conference, Nuts and Bolts of Nonprofits and Their People, with Syvia Strobel (ACM) and Deborah Vinsel(Thurston Community Television).

Key Issues in Board Governance

Board's Legal Duties: Are Your Directors Meeting Them?

 Boards of nonprofit corporations are ultimately responsible for the management of the corporation. Board members (directors) can delegate management to officers and staff but they must delegate such responsibilities with reasonable care and oversight. Meeting as a board a few times a year in and of itself would not be sufficient to meet their legal duties. Directors should, among other things:

  1. Review/revisit the mission, plans and policies for current relevance and applicability;
  2. Review the nonprofit's operations to ensure mission-consistency, effectiveness and efficiency;
  3. Review the nonprofit's financial health and performance on a regular basis;
  4. Develop, adopt and enforce policies to help assure legal compliance, sound risk management and adequate resource acquisition;
  5. Hire or elect the nonprofit's chief executive officer (typically, its executive director), and regularly review the performance and approve the compensation of the CEO;
  6. Develop and implement strategies to help empower the CEO and other key individuals with adequate training, knowledge, resources and discretionary power to implement the organization's plan;
  7. Actively participate in the development of a plan with future goals, activities, resource allocations (including a financial budget), and performance measures;
  8. Consider the adoption of new goals and strategies to advance the mission in new and possibly substantially more effective ways; 
  9. Stargaze ("making sure that their organization is ready and able to expand its horizons, to strive to achieve more and stretch itself to become the robust and resilient business that is capable of responding effectively to the unknowns in its future" – Lucy Marcus); and
  10. Act as ambassadors to the community, utilizing appropriate communication strategies in both discussing the organization to the community and bringing relevant information back to the organization's leadership.

See our earlier post on Board Rules and Duties and my article for the American Law Institute-American Bar Association on Corporate Governance for Nonprofits.

Social Media and Board Governance

We all recognize that social media is pervasive and may create amazing new opportunities for organizations and greatly enhance their external (and internal) communications. Nonprofits must take advantage quickly or risk losing a growing group of current and potential stakeholders that relies on social media as its primary source of information. So go at it! What could go wrong? Well …

  1. Your organization's ability to advance its mission may be seriously jeopardized if staff and volunteers misuse their time on social media.
  2. Your organization could lose credibility if it permits certain communications to be broadcast on its social media channels (e.g., hate messages, political statements in opposition to the organization's mission, distasteful and/or embarassing information). 
  3. Your organization could get sued for defaming (slandering) an individual as a result of a Twitter post entered by a volunteer assigned to contribute to the organization's feed (whether or not the volunteer was given a set of policies to abide by may be critical in determining the organization's liability).
  4. Your organization could get sued for copyright infringement due to an article/photo/musical piece it posted on one of its sites without the permission of the copyright holder (even if it attributed credit).
  5. A supporter might hold an event you tacitly authorized through social media channels ("raise funds for us in your communities by hosting mixers and distributing our materials") where someone gets injured due to the negligence of the supporter (and allegedly your negligence in failing to adequately supervise him or her).
  6. Your organization could get sued for wrongful termination if it based its termination on certain communications among employees on Facebook.
  7. Your organization may have breached a confidentiality agreement or individual's right of privacy by posting certain information (e.g., health information, credit card numbers) on its social media sites or not taking reasonable steps to prevent a hacker from hacking your sites and accessing such information.

See our earlier posts on 10 Issues to Address in Your Social Media Policy; Social Media Boundaries; and Can Nonprofits Terminate Employees for Their Social Media Posts?

Other Resources:

Also see Part One and Part Three of this series of posts.

Nonprofit Radio: Social Media Boundaries


Nonprofit radio
On Friday, April 12, I'll be on Tony's show discussing social media boundaries. Nonprofit Radio starts at 10 am PT / 1 pm ET. You can listen live here or catch us later on iTunes.

Here are examples of the social media issues we may discuss:

Charitable solicitations. With the advent of social media, nonprofits are increasingly coordinating fundraising activities across the country. But nonprofits need to know there are some registration requirements that can be triggered by these activities. Beyond that, charities must recognize their legal responsibilities to exercise control over their solicitation activities. If these are driven by volunteers in other states, charities must ask themselves if they are exercising adequate supervision over these agents and efforts.

  • What happens if volunteers are urged to coordinate a local event and somebody gets hurt there?
  • Will the charity be liable?
  • Will the charity's insurance cover it?

Advocacy. Charities can engage in lobbying and certain political activities, and social media certainly can be used in such efforts. But again, staff and volunteers using a nonprofit's social media channels need to know the rules of the game before engaging in advocacy that may:

  • trigger registration and reporting requirements,
  • require measurement of expenditures and other resources, and/or
  • jeopardize the organization's 501(c)(3) status.

The board should set rules, not guidelines, that prohibit the charity's social media vehicles to be used for lobbying on issues not related to the organization's mission or directly or indirectly endorsing political candidates. Charities need to be careful of allowing issue advocacy on wedge issues around election time. They need to think of what a "like" on Facebook, a "retweet" on Twitter, or a hyperlink to another site might mean in terms of lobbying and prohibited political activities. It does little good if only the executive director understands these rules when a much broader group controls the charity's social media.

Published content. Nonprofits are not immune from lawsuits for copyright infringement when it copies content from another source and publishes it on its own site or social media channels. Just because there is content on the web doesn't mean it's free for use, and simply providing attribution doesn't make it okay. Excerpting a small portion of an article may be alright (with attribution), but if you copy too much, the nonprofit may find itself in deep trouble.

Other content issues that can create serious problems for a nonprofit: defamation (a false statement that injures another person's reputation); harassment; discrimination; and bullying. Beyond potential legal violations, people get seriously hurt from these actions, and a nonprofit's reputation can suffer. Boards must make sure everybody creating or moderating content for the nonprofit is aware of the rules.

Response to violations or firestorms of controversy. Nonprofits should enforce their policies and determine what needs to happen if there is a violation. This may include deleting content, printing an apology, restricting access to the individual violating the policy, and in some cases termination.

But nonprofits need to know their employment laws if imposing any kind of punishment on employees for complaining about the organization or their supervisors. There are laws that protect certain types of speech, and nonprofits can face serious consequences for violating them. See Emily's article on the subject published by the Nonprofit Quarterly, “I Thought We Were Friends!” Can Nonprofits Terminate Employees for Their Social Media Posts?


10 Issues to Address in Your Nonprofit's Social Media Policy (Nonprofit Law Blog)

Preparing an Online Social Media Policy: The Top Ten Legal Considerations for Your Nonprofit (Venable LLP)

Influencing Public Policy in the Digital Age (Alliance for Justice)

A Nonprofit’s Legal Counsel Is The Social Media Manager’s Best Friend! (Beth Kanter)

10 Issues to Address in Your Nonprofit’s Social Media Policy


Social Media Icons

  1. Copyright and trademark infringement.  Tip: understand the fair use doctrine.  Trap: expecting attribution to offer protection against charges of infringement.
  2. Fundraising and foreign state registration requirements. Tip: check out The Unified Registration Statement.  Trap: disregarding registration laws and their application to funds raised through social media (see the Charleston Principles).
  3. Events and foreign state qualifications to do business.  Tip: think about whether you are responsible for an event organized through your social media channels and whether it triggers the need to qualify to do business in a foreign state (see Make it Your Business to Know if Your Corporation is "Doing Business").  Trap: organizing an event then claiming it's not your responsibility.
  4. Volunteers (and agents of the nonprofit) or independent supporters.  Tip: recognize that the more you control individuals, the more likely they are your agents and the more likely you're responsible for them.  Trap: instructing people to act in the nonprofit's name and not providing any rules or limits to their authority.
  5. Supervision of agents of the nonprofit (authorized communications, confidentiality issues, harassment/discrimination, defamation, bullying, privacy).  Tip: provide written rules and guidelines to make clear what is and is not acceptable in an agent's use of social media (whether the agent is an employee or a volunteer).  Trap: relying on an agent's common sense to avoid violating any laws.
  6. Advocacy and rules regarding lobbying and political activities (for agents of the nonprofit and users of the nonprofit's social media and communication platforms).  Tip: check out the Alliance for Justice/Bolder Advocacy for resources – you may be able to do much more in this area than you think.  Trap: liking political candidates and publishing unsolicited comments with political messages on a moderated site - digital advocacy offers particular challenges.
  7. Collaborations with other organizations and partnership/joint venture issues.  Tip: make sure you recognize whether you want your obligations to one another to be enforceable.  Trap: inadvertently creating a partnership in which each partner may be completely liable for harm created by the other partner.
  8. Ownership of social media accounts.  Tip: state in writing who owns social media accounts identified by individual and organization (e.g., Gene@NEO).  Trap: claiming ownership of a social media account in which the individual was given no rules or terms of use to freely publish anything of personal interest.
  9. Employee use of social media and protected activities.  Tip: know that certain uses of social media to complain about management and the board may be protected from retaliation – see Emily Chan's article in The Nonprofit Quarterly: “I Thought We Were Friends!” Can Nonprofits Terminate Employees for Their Social Media Posts?  Trap: adopting overbroad policies that restrain employees from exercising their rights to engage in concerted activities for mutual aid or protection.
  10. Violations of policies.  Tip: develop internal and external response strategies for violations of policies.  Trap: failing to respond in a timely manner (e.g., The Accidental Rebranding of Komen for the CureKivi Leroux Miller)


Recommended Resource: 

Social Media For Nonprofits - Slideshare channel (175 presentations and counting)

Nonprofit Radio for July 13, 2012: The 100th Show! It’s All Social Media

Tony Martignetti 2
Tony Martignetti

Tony Martignetti Nonprofit Radio is celebrating its 100th show this Friday! Tony's guest is Amy Sample Ward, a social scientist dedicated to supporting and educating organizations and changemakers in the use of evolving technologies that cultivate and engage communities. Check out her blog here.

Regulars Maria Semple and Scott Koegler will be there. And Emily and I will join in on the fun, talking about ownership of social media accounts when an employee posts in connection with work. Emily will briefly describe the story featured in the New York Times. And time permitting, I'll mention why nobody may "own" their own posts if they're broadcast to the world (see Lawyers Explain Why You Don’t Own Your Tweets).

Join us in congratulating Tony! You can listen live here.

Can Nonprofits Terminate Employees for Their Social Media Posts?

Emily's article, "I Thought We Were Friends!" Can Nonprofits Terminate Employees for Their Social Media Posts? was published in the current issue of The Nonprofit Quarterly.  Here are some excerpts:

  • Terminations due to actions on social media sites, commonly referred to as “Facebook firings,” have been gaining widespread attention over the past year, including from the National Labor Relations Board (NLRB), the federal agency charged with enforcing the National Labor Relations Act (NLRA).
  • Section 7 of the NLRA is the provision generally implicated by Facebook firing cases, and states, in relevant part:  Employees shall have the right to self-organization … and to engage in other concerted activities for the purpose of ,,, mutual aid or protection ….
  • Nonprofit leaders are typically unaware that the NLRA applies to their organization.
  • Starting next year, the NLRB will require employers to post a copy of a notice advising employees of their NLRA rights and provide information pertaining to the enforcement of those rights. This new requirement may also be a sign that the NLRB will be increasingly unsympathetic to employer policies that fail to reference NLRA rights or provide a Section 7 disclaimer.