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Free-Speech Restrictions Leave Federal Workers Anxious About Challenging Trump

The First Amendment does not always protect civil servants from reprisal.

The First Amendment does not always protect civil servants from reprisal. (Image: Jared Rodriguez / Truthout)

Recent internal memos on how and when federal employees can speak their minds has left those frustrated by President Trump in murky waters, according to advocates.

For climate scientists at the Environmental Protection Agency (EPA) or rogue members of the National Park Service, this uncertainty around their ability to speak without fear of reprisal is causing confusion and despair as the Trump administration assumes control and attempts to assert its version of the facts, according to Public Employees for Environmental Responsibility (PEER), a watchdog group that represents civil servants at agencies like the EPA.

“There will be a number of instances where people are speaking their minds and the rules aren’t all that clear,” said PEER Director Jeff Ruch, who counsels government employees about their rights. “And you have a chief executive who is somewhat thin-skinned, and that may trickle down through his appointees,” who could punish employees for actions perceived as dissent.

Ruch said there seems to be a “level of mutual mistrust” between civil servants who staff federal agencies as nonpartisan workers and President Trump, who promised on the campaign trail to gut agencies like the EPA, and announced a hiring freeze for many agencies shortly after taking office.

“The hiring freeze was not an economic measure but an effort to drain the swamp, as if [federal employees] are a malignant force and, if you can bleed them off, then government will be better,” Ruch said. “And a lot of this could be offensive to some of these career civil servants.”

Some civil servants have dared to challenge Trump. Since the National Park Service’s Twitter account was temporarily shuttered after it questioned White House statements on the size of the crowd at Donald Trump’s presidential inauguration, dozens of “alternative” federal agency accounts (such as AltEPA and AltFDA) have opened and amassed followings that rival their official counterparts.

These accounts identify with the anti-Trump resistance, and are unofficial. Many make it clear that tweets and posts are not coming from government employees in their official capacity, if from government employees at all. Ruch said PEER has been fielding questions from operators of these alternative accounts, which often challenge Trump’s public statements and draw attention to the latest climate science.

Agency employees who speak out against Trump are treading on difficult ground, particularly since federal civil servants have limited rights to free speech in the workplace. In 2006, the Supreme Court ruled that the First Amendment does not protect public employees for statements made while acting in their official capacity, making it risky to speak out against a new administration that has been openly hostile to the media and anyone else who challenges its narrative.

Moreover, the Hatch Act of 1939 prohibits the vast majority of federal employees from participating in certain political activities on the job, including advocating for and against political candidates. Trump has filed 2020 campaign paperwork and is considered a political candidate. This means that federal employees are prohibited from speaking for or against his reelection in their official capacity, according to a memo circulated by the US Office of Special Counsel last week.

Ruch said making a statement as simple as, “This is a disaster, we’ve got to get rid of this guy,” around the water cooler at a federal office could apparently cost a federal employee their job.

Federal employees do have First Amendment rights as private citizens, but that doesn’t protect them in the workplace. Not too long after the White House’s snafu with the National Park Service’s Twitter account, the EPA sent out an agency-wide memo advising employees about the difference between addressing the public as an EPA employee and in their “individual personal capacity.”

The memo urges employees not to refer to their agency title, such as “inspector” or “climate scientist,” when writing, speaking or making social media posts in their personal capacity, and not to make such statements from EPA computers:

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. You should be clear you are expressing an individual personal opinion, not speaking on behalf of the Agency.

Ruch said it’s unclear exactly what EPA employees would have to reveal about themselves to make sure their official status as an agency scientist or attorney is not “unduly prominent” compared to, say, their educational background or volunteer positions.

“Federal employees who depart from the official talking points enter murky waters,” Ruch said. “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.”

Ruch said the Trump administration could use this ambiguity to target dissent in its ranks, and purge critics of Trump’s policy directives for making statements that would otherwise be considered “borderline and marginal.” This looming threat is almost certainly having a chilling effect, especially at agencies that deal with hot-button issues like climate change and immigration.

“Sean Spicer said, ‘Get with the program or get out’,” Ruch said.

Still, this did not keep EPA workers in Chicago from attending a February 6 rally opposing Scott Pruitt, Trump’s nominee to head the agency, and speaking against him from their standpoint as employees.

Ruch said it was unclear if these employees were breaking ethics rules. The recent memos suggest that federal agencies would rather their employees not say anything to the public at all. However, despite all of this uncertainty over what federal employees can and can’t say in a nation under Trump, resistance to Trump at federal agencies continues.

“Besides social media, organizations like PEER, federal unions and even professional scientific societies will increasingly become channels for public employee free speech,” Ruch said. “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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