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

Is it possible at all for this. President to impose gag laws on us all?

Anonymous

You say, "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." How can that be right, just, Constitutional or legal? How does the President have the power to prevent our agencies, supported by our tax dollars, from sharing information or limit what they can say on a subject? Don't they have any protection or autonomy? Unless they are spreading false or politically biased information or ideas dangerous to the security of our country, shouldn't their expertise and research be available to us unfiltered by partisanship?

Chrisitna Gutmann

I would just like to know when we can expect this to happen? “We are transferring power from Washington, D.C., and giving it back to you, the people,” he said as rain fell over the nation’s capital.

Judith Brog, PhD

As a scientist, there is far too much latitude here in favor of the government. "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." The gag order has also been put on the NIH, and I can speak about that type of research. It's expensive, requires equipment, and a lab. Without these tools, scientists can't do research. Regarding "on her own time," that's not how scientists are paid. Technicians may be paid at an hourly rate, but not the scientists who run the experiments. NIH hires primary investigators, post-doctoral fellows, student interns, etc, none of who are paid hourly. Their time is spent at the lab using government funding and equipment. They can't perform their research outside the lab. Their reward relies in future advancement which requires publishing their data. Given what's happening, their careers are at grave risk. They can quit, get fired, or compromise their integrity. Add to this "when the employee's speech causes disruption to the work place," "when properly construed" does not provide any solace given our current administration. Scientists sacrifice high paying careers for their love of discovery. They work night and day in their efforts. They are poorly compensated, and rely on publications. Their research undergoes an extensive peer review process by other scientists. The government has no place in this.

Anonymous

What about the public's right to information created by the agency? Don't we have a right to that?

John D. Elliott

It's nice to know that our Constitution protects free speech, but even if it didn't, I would still be voicing my revulsion at DT's bizarre and unamerican behavior.

Lauren Warwick

Resist. Complain about gag orders and join in efforts to rescind them. Defend the First Amendment. I tell my right-wing friends I will accede to their hallowed second amendment when they stop trying to destroy the first.

A. M. Shea

Re: gagging EPA, et al. Why are we not dragging the Administration into court over violation of 1st Amendment? ". . . no law. . . abridging the freedom of speech." As a taxpayer I am supporting this research; I have a right to ask the agencies to give me the straight story about their work. My rights are being violated.

Anonymous

Thank you for doing this article. I work for EPA and it's good to be reassured that we can speak out.

Anonymous

Thank you for the moral support. However, this article fails to cite any statute or interpretation of statute to support it. As a concerned federal employee, I would like some specific analysis of the Hatch Act, which is often mentioned in a threatening tone to clamp free speech on private time and on social media private accounts.

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