Federal Employee Free Speech Tied in Knots
Ethical Quagmires Line Narrow Path of Federal Workers’ Ability to Speak Out
Washington, DC — Federal employees concerned about Trump White House actions face legal constraints on their freedom to protest, according to ethics warnings posted today by Public Employees for Environmental Responsibility (PEER). Some restrictions are clear but others are subject to interpretation.
The biggest limitation is that government workers have no – as in zero – First Amendment free speech rights when acting in their official role. That is because the government owns their speech according to a major constitutional ruling by the Roberts Supreme Court back in 2006. Government workers can regain free speech rights only by stepping out of that official role and acting as private citizens.
That transformation is not always straightforward, however, as even White House aides are discovering:
- A new U.S. Environmental Protection Agency ethics advisory cautions that even on their own time acting as individuals “we urge you…if possible, not refer to EPA position or title. If you feel you must refer to your EPA position or title, then the prudential advice is to do so as one of several biographical details with EPA not having any undue prominence”;
- Since President Trump has already filed paperwork for reelection, he is now covered by the Hatch Act. Thus last week, the U.S. Office of Special Counsel advised that “federal employees, while on duty or in the workplace, [are barred] from expressly advocating for or against his reelection”; and
- According to restrictions on indirect or grassroots lobbying, “employees may not explicitly or implicitly encourage the public to contact Congress in support of, or in opposition to, a legislative proposal” but are allowed to “inform the public of the Agency’s or the Administration’s position on legislative proposals,” per a memo from EPA’s Office of General Counsel.
Thus, it is unclear what more a federal climate scientist from a particular agency must disclose about him or herself in order to make those facts not unduly prominent. Similarly, there is no bright line flagging when a federal scientist speaking out about the value of his or her research is “implicitly encouraging the public to contact Congress.” In the same way, water-cooler grousing about the adverse effects of Trump policies could be used as the basis for charging the Hatch Act violation of advocating his removal.
“Federal employees who depart from the official talking points enter murky waters,” stated Executive Director Jeff Ruch of PEER which counsels federal workers on free speech issues. “Unlike White House staff who are merely counseled about clear ethics violations, public employees trying to educate the public about the consequences of Trump initiatives may be targeted for discipline or removal.”
Federal employees are exploring ways to circumvent these restrictions. For example since the Trump White House temporarily shut down and then sanitized the official National Park Service twitter account, more than 60 independent but agency-specific twitter accounts, most run by agency staff, have sprung up. These rogue or Alt-accounts have far more followers and traffic than official social media ever did.
“Besides social media, organizations like PEER, federal unions and even professional scientific societies will increasingly become channels for public employee free speech,” added Ruch, noting that PEER has been assisting several of the Alt-agency twitter accounts. “Times have changed – both the public and public employees are demanding more candor and have less tolerance for censorship than ever before.”
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Read the OSC Hatch Act opinion
Revisit Supreme Court ruling on total absence of public service free speech rights
Obviously, a fine line here as you want people to have free speech, but at the same time not have them constantly go against their employer publicly. A workplace dispute, for instance, would first be talked out internally, and then if it can’t be solved or considered – then the employee’s option would be to seek other employment.
If too much leeway is given to government employees, then that could eventually lead to them forming their own marches in the streets. Okay for private workers, not okay for government workers as loyalty is needed.
A government employee is completely different than say, a lobbyist, consultant or even someone in an advisory role on a board – where differences of opinion are expected, often needed and sometimes welcomed. But even then, when these catagories of people speak publicly they should identify their position.
Federal employees NEVER had First Amendment free speech rights. Even scientific studies must be signed off at the highest levels of an agency. This is why I kept silent about waste, fraud, and abuse as well as biased scientific “research” when I worked for the Feds. The Whistleblower Protection Act was and is pretty much a joke, and the Offices of the Inspector Generals are extremely political and don’t do much except for suspending the GS-1-7’s, sometimes GS-9’s, who use government copy machines to make copies of their tax returns. Higher-graded employees literally can be caught sleeping at their desks and not face any discipline. Now, with Orange and President Bannon running the shop, nothing will change; it will only get worse.