Government Employees Get to Have Opinions, Too

In the midst of widespread reports of a clampdown on federal agencies’ public communications by the Trump administration, lots of people are asking about what rights federal government employees have to continue speaking to the public. The short answer? It depends.

The new administration is entitled to use the official channels of government – whether they be press briefings or websites or social media accounts – to put out its own messages, and it can decide what federal employees are allowed to communicate when they are on the job. But the First Amendment still protects those employees’ ability to speak in their private capacities, on their own time, about matters that concern the public.

At the moment, different federal agencies have reportedly imposed different restrictions, from the Department of Agriculture to the Environmental Protection Agency. These restrictions vary, from limiting social media posts and press releases to preventing communications with Congress. It is unclear how long the freezes will last or whether some of the directives were properly authorized.

It’s certainly understandable why many people are alarmed over communications bans on the important work of our federal agencies, particularly where the public needs to know about critical government functions. However, one of the consequences of the election is that the new administration now controls what federal agencies say and what side of an issue they take in a debate about, for example, climate change or reproductive rights.

What the government cannot do is impose an overbroad muzzle on its employees that prevents them from speaking out at all.

What do federal employees remain free to say? The Supreme Court has stated clearly that public employees cannot be fired for speaking on issues of public concern as private individuals. Practically speaking, this means that – with the possible exception of certain high-ranking government officials – an employee can speak on personal time and in a personal capacity about matters that affect the public. Their protections are strongest when they are speaking about issues that do not relate to their job duties. For example, a scientist who works at the Environmental Protection Agency is free to research and write academic papers on her own time, which she can then publish under her own name. A State Department employee can attend a local school board meeting and express support for a measure being proposed. To the extent their speech meets the above requirements, employees can even speak anonymously. (One Twitter account that launched last night seems to be run by a handful of National Park Service rangers apparently writing during their personal time.)

These are general rules, and there are exceptions, such as when an employee’s speech causes disruption to the workplace. But properly construed, any exceptions should apply only in those cases where the government’s interest in carrying out its duties is truly impaired by what an employee has said.  

The ACLU has repeatedly stood up for these principles, including recently in representing the former chief prosecutor for the Guantánamo military commissions who was fired from his job at the Congressional Research Service because of opinion pieces he wrote about Guantánamo that ran in The Wall Street Journal and The Washington Post. That case demonstrated the importance of maintaining ample breathing room for public employees to speak: They are often the ones with the most relevant expertise and intimate knowledge of how government works, and can bring a unique perspective to public debate about critical issues.

For these reasons, it is essential that courts continue to robustly protect public employees’ ability to speak out – not only because they do not surrender their First Amendment rights when they take on government employment, but also because the public needs to hear their voices.

The administration may be able to control certain official communications channels, but the public isn’t powerless. We can pressure elected officials to be more transparent. We can support independent journalism and nongovernmental organizations that defend whistleblowers.

Our values of open government, transparency, and democratic accountability depend on it.

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Anonymous

I do hope they speak out there worries about problems with their work atomsphere

Alexander Levy, Esq.

The information federal employees have that is not privileged belongs to the people of the United States. Presumably, the president cannot tell public agencies not to communicate with the public or order agencies to lie about the information they have.

Anonymous

I hope this is correct and defensible.

Anonymous

Thank you for this informative piece.

Karen Juster Hecht

Thank you.
Please stay vigilant and continue to update the public on a regular, daily if necessary, basis.
The last lines of this "article" say it all....
Proud to support you; looking forward to becoming more actively involved.

Anonymous

Thank you!

Anonymous

About that independent journalism... "The media" have been on Trump's sh*tlist long before this election, yet I'm seeing very little from the ACLU about protecting journalists, not to mention protesters. At the moment, the ACLU seems to be funneling the majority of its efforts towards immigration issues. That's certainly important, but as a long-time supporter of the ACLU, I expect some reassurance that the organization is mobilizing on First Amendment violations. Silencing free speech is one of the most effective steps in the slide to dictatorship. ACLU: Please, PLEASE stay true to your roots and help protect our right to refute the administration's lies.

Anonymous

I hope you're planning to DO something about this. I don't know who the hell he thinks he IS.
I was Republican before the GOP started calling HIM that. I don't think he's Republican, I think he's a Plutocrat. I was ok thinking of myself as Republican when Mitt Romney was running but not Trump.

Anonymous

As the government is " for the people" it seems that it should be illegal, and is certainly unconscionable, to impose gag orders on any federal agency. This puts far too much powered in the hands of the President as knowledge is power. This is a true travesty of justice and principle

Anonymous

My question is, how does this relate then to the Freedom of Information Act, as well as the notion that these government agencies are funded by taxpayer dollars. It seems to me that if our taxes are going towards institutions that are now banned from publicizing facts, we should be able to opt out of paying taxes. And a follow up, what role do organizations like the ACLU have to protect federal agencies like the EPA, when it is clear that the current administration is engaging in gaslighting?

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