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

Regarding the Theron Leonce/Concerned Public Servant comment, as a concerned Public Servant/DoD federal employee, I suggest that feds working for the DoD US military need to cease the attack on the Commander in Chief. It is time for this country, (and certainly federal employees) to once again respect the Office of POTUS whether you agree with policies or not. You are paid by the taxpayers and the tone of disrespect by current federal employees is disturbing; may be best for you to find a job funded by the left wing extremist (private) mainstream.

Anonymous

http://www.good.com

Anonymous

Okay, you defend the first Amendment as applied to public employees. Why not defend it as applied to private employees too? The ability of private employers to fire controversial speech of any sort undermines the security of whistleblowers, political dissidents, and ordinary citizens. It's not only government employees who have important information to discuss with the public - it's everyone.

Anonymous

2018- it seems that party affiliation is paramount during this administration. What impact do you think this may have on federal employees ( say FBI, IRS, etc) willingness to vote? Since identifying with a political party- info is public- particularly in primary elections ( often closed primaries).? A supervisor may decide to only hire/promote someone affiliated with their administration's party- award contracts, etc. Perhaps, given the hyper -partisanship of today , we should not have to identify a party in order to vote in a primary election? Beyond the Hatch Act?
Tks for all you do.

Anonymous

I'm an AL state employee, and have witnessed some policy violations from some of my supervisors (dictators) that would land them in hot water if their bosses and the public found out. Is there a way to expose this without fear of retribution from my department?

Jonathan

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Arianna

This is really nice and interesting stuff for me to read. I like to get such kind of article. Now I will talk about this with others too after mine boston to new york city tour.

Anonymous

Nice to know about this stuff.

Anonymous

So glad after getting this.

Anonymous

I love this article. I know of a state employer that just revised it’s social media policy to ban all social media posts by public employees regarding pending legal matters before the employee’s specific bureau, office, division, commission, etc. without appropriate approval. Because the ban isn’t limited to official duties at work but applies to all public comments even those made as a private citizen on a matter of public concern, it appears to be an unconstitutional muzzle imposed on public employees. Hopefully the ACLU will get involved. Thanks for all you do to protect First Amendment freedoms!

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