If the classic First Amendment case New York Times v. Sullivan was “an occasion for dancing in the streets,” as the philosopher Alexander Meiklejohn once said, then Donald Trump’s first week in office was an occasion for gathering in the streets—and airports—to protest an administration whose early actions made me think of what would happen if Cirque du Soleil replaced every one of its professional performers with golfer John Daly.
I noted the Sullivan decision because President Trump made First Amendment news last week. The administration began to purge its websites of all kinds of information and instructed certain agencies not to publish external communications (e.g., press releases, social-media posts, etc.) and to consult senior officials before speaking to journalists. But the notoriously swashbuckling Badlands National Park posted climate-science data on its Twitter feed—and upon their removal, the Theodore Roosevelt Inaugural Site tweeted a quote about free expression (“a necessity in any country where the people are free”). Then so-called alternative accounts sprang up, purporting to represent the actual agencies’ views. It’s unclear whether those accounts are connected to agency staff.
It didn’t take long for people to wonder aloud on Twitter and Facebook—and in my inbox—why the First Amendment didn’t seem to protect the agency staff. Why couldn’t they tweet what they wanted, as long as the content was truthful? Could the administration instruct agency staff not to speak with journalists? Is that constitutional? What’s the extent of the administration’s power in this context, over employee speech? And what are the limits on that power? Those are among the questions I answer below—in what I hope will be a useful general primer on government speech and the free-speech rights of government employees.
Government Speech
It’s important to acknowledge that it’s common for a new administration to make changes to agency web content and to instruct staff not to publish external communications or talk with journalists, at least until the new senior officials get settled in. As a career Environmental Protection Agency official told the New York Times last week, “I’ve lived through many transitions, and I don’t think this is a story. This is standard practice.”
With that in mid, what’s the law? Generally, the government itself may say what it wants, and it may control the content of its house organs (e.g., newsletters, websites, social-media accounts, etc.). There is, however, an emerging debate about whether a social-media account is capable of being seen as a public forum, if it solicits and encourages public discussion. That could subject the account to First Amendment limits. Lyrissa Lidsky, a University of Florida law professor, put it this way:
“This question ought to have an easy answer, but it does not. . . . At one end of the spectrum, a government actor who creates a purely informational Facebook page . . . retains complete editorial control over that page. At the other end of the spectrum, a government actor who purposefully creates a completely open and interactive public forum . . . probably cedes all but the most limited forms of editorial control over that forum. . . . Between the extremes of no interactivity and full interactivity, it is difficult to predict whether courts will label a government-sponsored social media presence a public forum or not.”
As I pointed out in October in the Columbia Journalism Review, there’s little recent case law on point. A judge once ordered the Honolulu Police Department (HPD) to pay attorney fees to activists who claimed that the HPD violated their First Amendment rights by removing their comments from the HPD Facebook page. And last year a lawsuit settled over a claim that a sheriff’s department violated a man’s speech rights by deleting his comments from the department’s Facebook page and blocking him.
Government Employee Speech
Under the First Amendment, generally, the government may not fire or otherwise discipline one of its employees for his/her speech if: (1) The speech is related to a matter of public concern; (2) the speech is not part of the employee’s job; and (3) the speech’s value to the employee and the public outweighs any harm it caused to the agency’s efficient operation, taking into account, for example, the degree to which the speech threatens the agency’s authority or interferes with close working relationships in the agency.
So when is speech related to a matter of public concern? Who knows? The Supreme Court has said that issue should be judged by “the content, form, and context of a given statement,” and it has held that some speech is of private concern (e.g., “employee grievance[s] concerning internal office policy”) and other speech is of public concern (e.g., speech about inappropriate pressure to participate in political campaigns or about funding allocations).
A general rule, from UCLA law professor Eugene Volokh, is that “communication to the public at large is more likely to be seen as speech on matters of public concern than communication to one’s coworkers.”
Now, that’s just the First Amendment. Government employees have speech rights under other sources of law, too, and the most relevant here would be whistleblower-protection laws. Jason Zuckerman, a litigator who focuses on whistleblower retaliation and other employment-related claims, published an excellent piece last week covering this ground. I’ll highlight some of the main points.
First, the government may not prohibit its employees from making protected disclosures (e.g., reporting fraud) to an inspector general or special counsel, or to congress or the media. Second, the Whistleblower Protection Enhancement Act (WPEA) forbids agencies from adopting nondisclosure policies that bar those things—and forbids agencies from enforcing a nondisclosure policy that lacks a disclaimer regarding whistleblower protections. The WPEA also tells the government that it may not retaliate against agency scientists who, as Zuckerman explains, “challenge censorship or make disclosures related to the integrity of the scientific process.”
Finally, any prohibition on employee disclosures to Congress could violate the Lloyd-La Follette Act, passed in 1912. It states, in part, “The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.”
All of which is to say, to quote Sullivan: Discussion of “public issues should be uninhibited, robust, and wide-open”—and that applies, for the most part, to federal employees, too.
Jonathan Peters is the First Amendment chair of the Civil Rights Litigation Committee. He is also a media law professor at the University of Kansas and the press freedom correspondent for the Columbia Journalism Review.