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.”
Read the OSC Hatch Act opinion
Revisit Supreme Court ruling on total absence of public service free speech rights