Alexandra Schwartzman (firstname.lastname@example.org) J.D., expected May 2019, The George Washington University Law School; M.S., 2016, Columbia University; B.A., 2012, Oberlin College. I would like to thank Professors Collin Swan and Naomi Schoenbaum for their time, insight, and guidance. I would also like to thank my family for their unwavering patience and support.
The public interest in having free and unhindered debate on matters of public importance — the core value of the Free Speech Clause of the First Amendment — is so great [that] statements by public officials on matters of public concern must be accorded First Amendment protection.1
In November 2017, Juli Briskman unexpectedly found herself biking alongside the presidential motorcade.2 Frustrated by the President’s open callousness toward Deferred Action for Childhood Arrivals recipients, his lackluster response for Puerto Ricans in the wake of a devastating hurricane, and his discriminatory approach to healthcare, Briskman “flipped off” the motorcade in a spontaneous act of political defiance.3 A White House photographer caught the moment on film, and the photograph quickly made its way onto the Internet.4 Because the photograph circulated on social media platforms so quickly — indeed, Briskman herself used the photo as her profile picture on Facebook — she decided to alert her employer before they saw it themselves.5 Briskman was an employee with Akima LLC (“Akima”), a company that recruits employees who are then contracted out to work in both government agencies and private businesses.6 Though the photo does not reveal any particularly discernable features linking the image to Briskman or Akima, the company promptly fired Briskman.7 Akima provided two rationales for its decision: first, because the photograph might impact the company’s relationship with a customer, the U.S. government, and second, because her actions amounted to a violation of the company’s social media policy prohibiting obscene content on social media.8 Activities like Briskman’s are scrutinized increasingly because of the expanding role of social media and how people harness their accounts as a platform for their political beliefs and allegiances.9
Akima classified Briskman as its employee, but it is possible that she worked for Akima’s clients in what could be described as an independent contractor role.10 Independent Independent contractors are distinct from employees because they exercise a greater deal of autonomy in their work. Independent contractors often make their own schedules and provide their own supplies, receive minimal supervision from superiors, and have diminished opportunities for financial gain or loss.11 Akima provides placement services that fit independent contractors into positions with government agencies and contractors.12 Once in these agencies, the workers often perform in positions similar or identical to government employees,13 manifestly becoming personal service contractors. Personal service contractors are those individuals who conduct their work and have the appearance of federal employees, but are hired under contract and not subject to civil service laws.14
Briskman’s work was associated with the government, so perhaps it would have made sense to provide her with the same protections as a public employee. Public employees retain their First Amendment free speech rights subject to the balancing test set forth in Pickering v. Board of Education.15 Though a court is the ultimate arbiter in determining whether Briskman was speaking on a matter of public concern and how severely that would impact her ability to carry out her duties, it is at least foreseeable that Briskman would be able to make a colorable argument on her own behalf.16
But Briskman was not simply engaging in any matter of free speech: the actions that led to her termination were political. Had she been a government employee, her actions would have been scrutinized under the Hatch Act of 1939 (“the Hatch Act”),17 which seeks to create a system of federal governance that is not corrupted by political ideologies.18 The Hatch Act allows federal government employees to participate in the United States’ political process as much as is practicable to continue carrying out their work responsibilities.19 The Hatch Act safeguards federal employees against retaliation or discipline for serving in a role that involves political management or on a political campaign,20 or for expressing their personal opinions regarding political topics or candidates.21 Yet these permissions to participate politically must be balanced against the employee’s duty to carry out work responsibilities without conflict or corruption.22 Correspondingly, the Hatch Act establishes limitations on an employee’s ability to engage in political acts that are “directed at the success or failure of a political party, candidate for partisan political office [or] partisan political group.”23 The allowances that federal employees are given to engage in political activity are restricted further by a statutory prohibition against engaging in political activities while on duty, in an official government building, wearing markers of federal employment, or in a government vehicle.24 Because Briskman did not engage in any of the prohibited political activities set forth in the statute, it is possible she would have been protected against retaliatory firing as a federal employee.25
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