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The First Amendment Applies to Foreign Service Officers, Too

Kate Wood,
Fellow, ACLU Speech, Privacy and Technology Project
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May 15, 2012

Today, the ACLU told the State Department that public employees don’t give up their First Amendment rights in exchange for a job with the government. We sent a letter to the State Department on behalf of Peter Van Buren, a State Department employee who is being punished for publicly criticizing the U.S. reconstruction effort in Iraq. He has written extensively on the program’s problems, and is now in the process of being fired. Our letter advises the State Department that its actions violate Mr. Van Buren’s freedom of speech and urges the department to reverse course immediately.

Mr. Van Buren is a 23-year veteran of the State Department’s Foreign Service. He has worked all over the world, including Taiwan, Korea and Hong Kong, and has received numerous awards for his service. In 2009-2010, he led a Provincial Reconstruction Team in Iraq. When he returned to the U.S., Mr. Van Buren became a vocal critic of the reconstruction, writing an unflattering book about the waste he witnessed and authoring several pieces for major news outlets. He also began a personal blog covering the reconstruction and other public issues.

Now the State Department has proposed firing Mr. Van Buren under the guise of a procedural rule, creating the strong appearance of unlawful retaliation. Government employees have the First Amendment right to speak as private citizens on matters of public concern. There’s no question that the subject of Mr. Van Buren’s book, blog posts, and news articles — the reconstruction effort in Iraq — is such a matter. And, government employees are often in the best position to know what ails the agencies that they work for.

The State Department is attempting to justify the firing by claiming that Mr. Van Buren failed to comply with the agency’s prepublication review policy. The State Department’s policy requires all employees to submit everything they write for prepublication review, regardless of whether they are writing in their official or personal capacity. This policy, especially as applied to blog posts and articles, raises serious constitutional questions. By forcing employees to submit all their writings for prepublication review — even articles and blog posts written on their own time — the State Department is effectively shutting its employees out of any meaningful participation in critical public debates. There is no justification for such an expansive prior restraint.

Mr. Van Buren has a constitutional right to speak about issues of which he has expert knowledge, and the public has a right to hear from him. We hope the State Department will reconsider its unconstitutional plan to punish him.

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