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.

Add a comment (45)
Read the Terms of Use

Anonymous

Thank you. I will donate what I can every month.

Anonymous

Thank you. I am a government employee and I have many concerns about the current administration that I want to voice.

Richard A.

You and the rest of the nation. It's not humiliating enough that he stands before the entire military as a known draft dodger, he has to add this week's massive insults to injury and make a national embarrassment of himself. It's like it's his natural mode of operation.

Anonymous

Me, too! I am so grateful for the ACLU!!!

Anonymous

We are dealing with dictators, it will need to be quick and strong!

Anonymous

Does this apply to members of the military?

Theron Leonce

All US military personnel fall under the Uniformed Code of Military Justice (UCMJ); a legal system more strict and much less democratic than its civilian counterpart. You do not have free speech in the military, you have Limited Speech (Which means you have some rights to free speech). You cannot bad mouth your Commander in Chief (President) or members of congress.

Article 88 of the UCMJ, 10 U.S.C. 888, makes it a crime for a commissioned military officer to use contemptuous words against the President and Congress, among others. The Department of Defense has also expanded this rule to include all military enlisted personnel (DOD Directive 1344.10).

Most member of the military learn this after enlisting like I did. Now I'm a federal employee and researching my rights to protest and speak publicly against things I don't agree with regarding this current administration. Thank God for the ACLU and their work to ensure Checks and Balances are weighed against what 1 branch of Government (Executive) thinks is their un-vetted right.

A concerned Public Servant.

Anonymous

Well, since Spicer denied today, in a press conference, that the WH issued ANY mandates about government agencies speaking out on social media, I guess there's nothing to see here.

Anonymous

How does this relate to the Freedom of Informatiom Act. As a citizen, don't I have the right to non classified govt work product?

Anonymous

FOIA has a long list of exceptions that cover just about anything that they want it to.

Pages

Sign Up for Breaking News