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Can the President Really Curb Speech of Federal Agencies?

By George Khoury, Esq. on January 26, 2017 | Last updated on March 21, 2019

After the Badlands National Park went rogue on Twitter last week, posting facts related to climate change, much attention was drawn to the new president's policies on government employee free speech. While the First Amendment protects free speech rights, those rights are not absolute.

This week, the White House issued directives to several federal agencies that mandate supervisor approval before employees make public statements, particularly concerning political or scientific matters that the previous administration supported. The implication seems to be that supervisor approval will be withheld if the content is in line with the previous administration's core policies.

The president, as the executive officer of the federal government, basically controls each federal agency through the power to hire the agencies' head directors. Additionally, it is within the president's power to tell the directors to implement new policies, even those that restrict government employee speech that relates to an employee's duties.

No Free Speech for Employment Duties

As a preliminary matter, it should be noted that employees do not actually have free speech rights when they are performing their job duties. This is true for both public and private employees, with few exceptions. An employer can discipline an employee for speech that's disruptive or against company policy. Although, employers need to be careful to avoid discrimination or retaliation claims based upon speech.

If an employee is paid to write, speak, tweet, post, blog, or create content on behalf of an employer, then that is not protected free speech. Aside from college professors, there are very few exceptions to this. Basically, if a person is a mouthpiece of any type for their employer, even government employers, they cannot go rogue and rely on the First Amendment.

What Free Speech Protections Exist for Government Employees?

While government employees, like public sector employees, can be disciplined for their speech related to job duties, there are protections for employees that exercise their free speech rights outside of work or their duties.

For instance, if an employee is retaliated against after making a discrimination complaint to the EEOC, the subsequent retaliation is prohibited for both public and private employers. On the other hand, the Badlands National Park employee that tweeted climate change facts could likely be disciplined without violating their free speech rights as tweeting was arguably part of their official duties. If the employee had used their personal account, then the question of whether it was part of their job duties becomes murkier.

When a government employee speaks out about matters of public concern, particularly if it involves government corruption or gross misconduct, they will be protected from retaliation by the First Amendment if the speech was not pursuant to their job duties and did not cause disruption in the workplace. If the speech was disruptive to the workplace, or the employer's operations, then the employee will need to show that the speech was important enough to the public that it justified the disruption.

However, the caselaw related to First Amendment free speech protections for both public and private employees is an ever-changing area of law. The new restrictions imposed by the new administration may even end up providing more First Amendment protection to government employees that speak out publicly.

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