ACLU Files Lawsuit, Seeks Injunction to Protect Free Speech Rights of Court Administrative Employees

New Rules for Human Resources, IT, Data Analysis and Other Administrative Staff of the U.S. Courts Are Stricter Than Those for Federal Prosecutors, CIA Agents, and Federal Election Commission Employees

May 31, 2018 10:30 am

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WASHINGTON — The American Civil Liberties Union of the District of Columbia (ACLU-DC) filed a First Amendment lawsuit today challenging new rules prohibiting employees of the Administrative Office of the U.S. Courts (AOUSC) from engaging in a broad range of political speech and activities and asked a federal court to block their enforcement. The AOUSC employs several hundred employees who provide administrative support services to the federal courts, but unlike judges, do not participate in deciding court cases.

The rules, implemented in March, bar these employees from a wide range of political activity, including posting about political candidates on social media; attending or organizing events for partisan candidates; displaying political lawn signs at home or wearing political badges or buttons off-duty; attending party conventions or meetings; or contributing money to a political party or candidate.

“During my three decades in public service, I’ve never had to choose between my job and being an active participant in our democracy,” said plaintiff Lisa Guffey, currently a Supervisory Attorney Advisor with the AOUSC and a former Lieutenant Commander in the Judge Advocate General’s Corps of the United States Navy. “Expressing my views about candidates for office has no bearing on my ability to effectively do my job.” The other plaintiff in today’s lawsuit, Christine Smith, works in information technology at the AOUSC.

While most federal employees work under some restrictions regarding political activities outlined in the Hatch Act, the new AOUSC restrictions are stricter than those applicable to FBI agents, CIA intelligence analysts, federal public defenders, and staff of the Federal Election Commission — the federal agency that regulates elections themselves. The complaint notes that even Special Counsel Robert S. Mueller III could legally contribute funds to President Trump’s primary or general-election challengers for reelection, while an AOUSC facilities manager cannot.

“The idea that administrative employees of the court system must refrain from participating in the democratic process is antithetical to the First Amendment,” said Scott Michelman, Senior Staff Attorney with the ACLU-DC and lead counsel in today’s case. “Without a compelling rationale, the Administrative Office of the U.S. Courts is stifling the political speech of its employees and violating the Constitution.”

The ACLU-DC’s motion for a preliminary injunction asks that the court strike down nine specific restrictions on employee political speech and associative activity and cites specific examples of how AOUSC employees are already being deterred from a variety of political activities, including expressing their political opinions on Facebook, attending a political event, and donating money to a political party.

Attempting to justify the sweeping restrictions on political speech, AOUSC Director James Duff asserted in a July 2017 memorandum that the new restrictions are valuable in conveying “unity of purpose between the [Administrative Office] and the courts” and aligning the restrictions on administrative employees with those that apply to other court staff like federal judges. Today’s lawsuit asserts that these vague rationales “come nowhere close” to meeting the First Amendment’s requirement that blanket employee-speech restrictions be justified by a real and concrete threat to the government’s operations.

In late March, the ACLU-DC wrote Duff to alert him to the First Amendment problems with the AOUSC’s new rules and to ask that the restrictions be rescinded. He declined to do so. He is named as the defendant in today’s lawsuit.

The case, Guffey v. Duff, was filed in the U.S. District Court for the District of Columbia. The complaint can be found here:

The March 2018 letter from the ACLU-DC to Director Duff outlining the problems with the new rules can be found here:

This press release can be found here:

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