One of President Donald Trump’s first orders of business as Commander in Chief is message control. The Administration has forbidden employees at several agencies from making statements to the public, even shutting down official agency Twitter accounts.[i] While these orders seek to prevent agencies from “going rogue” while they transition to the new Administration’s policies, heavy-handed enforcement of the orders could lead to the illegal silencing of American citizens. Thus, the Trump administration must tread carefully in enforcing its gag orders, careful not to encroach on employees’ First Amendment rights as private citizens.
Take, for example, the recently created Twitter handle @AltUSNatParkSer, described by its administrators as the “Unofficial ‘Resistance’ team of U.S. National Park Service.”[ii] One of the account’s first tweets reads: “Mr. Trump, you may have taken us down officially. But with scientific evidence & the Internet our message will get out.”[iii] Several other agencies also have spin-off Twitter accounts, among them @RogueNASA, @ActualEPAFacts, and @altEPA.[iv] While some of these “alt” government Twitter handles have now taken precautions and transferred the administration of their accounts to people employed outside of the federal government[v], these accounts still raise a few questions: If the people supplying the subject matter for these tweets are employees of the federal government, can they be fired for misconduct? Or are they merely exercising their First Amendment right to free speech as citizens?
The 2006 U.S. Supreme Court decision in Garcetti v. Ceballos provides some guidance.[vi] In Garcetti, the Court held that a government employee’s speech is entitled to First Amendment protection if: (1) he spoke out as a citizen on a matter of public concern; and (2) the government entity for which he worked didn’t have adequate justification for treating him differently from any other member of the general public.[vii]
The inquiry into whether speech is of public concern is relatively simple. If the speech in question is “fairly considered as relating to any matter of political, social, or other concern to the community, or . . . a subject of legitimate news interest,” it passes muster as public concern.[viii] In our current hyper-politicized climate, it’s not a far stretch to determine that the information tweeted out by these employees is a matter of public concern. The trickier questions in this scenario are whether the employees are speaking as citizens and whether the Trump administration has legitimate reasons for silencing the speech.
The U.S. Supreme Court recently determined that a government employee does not speak as a citizen when the speech is made within the scope of an employee’s duties.[ix] But what if the employee is speaking out about a topic that she learned in the course of her employment? Does that count? In this case, it’s clear that agency employees, like the people behind @AltUSNatParkSer and other accounts, are spreading knowledge gained from their employment with the federal government. In a 2014 opinion, the Court held that a government employee can still be speaking as a private citizen, even when the speech “concerns information related to or learned through public employment.”[x] Because, in the Court’s view, “[t]he interest at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it.”[xi] Furthermore, the Court recognizes that government employees are often in the best position to know “what ails the agencies for which they work.”[xii] Additionally, many of the Twitter accounts have focused on the dissemination of scientifically-supported facts.[xiii] At a time where the Trump administration is making the public navigate between real and “alternative” facts, the argument that these tweets are of public concern is strong.
What weight, if any, would a court give to President Trump’s interest in maintaining a unified administration? The short answer is some. The U.S. Supreme Court has recognized that the government has a valid interest in running effectively and efficiently, which includes “promot[ing] efficiency and integrity in the discharge of official duties and maintaining proper discipline in public service.”[xiv] As Justice Powell explained, “[T]he Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation[.]”[xv] Furthermore, the First Amendment does not take away the government’s right to set codes of conduct for its employees. However, the Court also cautioned that, the more substantially an employee’s speech involves matters of public concern, the more difficult it would be for the government to show its interests in efficient governance trumped that of the employee’s desire to speak out.[xvi]
In an era of increasing government scrutiny and distrust of the political machine, it’s likely that nearly all employee speech contrary to the Administration’s desired message will be fully within the bounds of public concern. These “rogue” agency Twitter accounts have thousands of followers each, and as media buzz continues to swirl around these accounts, public interest will only grow.[xvii] Until a Supreme Court decision to the contrary, the Trump administration will need to tread carefully if it considers disciplining employees who publicly dissent on their own time and on their own devices, even about topics closely related to their jobs. Considering both President Trump’s obsession with questioning the limits of the First Amendment and the late Justice Scalia’s seat currently up for grabs, a U.S. Supreme Court opinion in the near future restricting government employee speech is not outside the realm of possibility. For now, however, the more the public thirsts for information, the more difficult it will be for government employers to proffer legitimate reasons for terminating employees on the basis of their speech.
Oh, and if Trump messes with federal employees, we’ll be watching._____________________________________________
[i] See, e.g., “Trump Administration Puts Gag Order on Several Government Agencies,” Fortune (Jan. 25, 2017), http://fortune.com/2017/01/24/trump-gag-order/; “Agencies Told to Halt Communications as Trump Administration Moves In,” New York Times (Jan. 25, 2017), https://www.nytimes.com/2017/01/25/us/politics/some-agencies-told-to-halt-communications-as-trump-administration-moves-in.html?_r=0.[ii] AltUSNatParkService (@AltNatParkSer), Twitter, https://twitter.com/altnatparkser. [iii] AltUSNatParkService (@AltNatParkSer), Twitter (Jan. 24, 2017, 5:55PM), https://twitter.com/altnatparkser.
[iv] See “What The ‘Rogue’ EPA, NPS and NASA Twitter Accounts Teach Us About the Future of Social,” Forbes (Jan. 25, 2017), http://www.forbes.com/sites/kalevleetaru/2017/01/25/what-the-rogue-epa-nps-and-nasa-twitter-accounts-teach-us-about-the-future-of-social/#4d0876215dc0; altEPA (@altUSEPA), Twitter, https://twitter.com/altUSEPA; Rogue NASA (@RogueNASA), Twitter, https://twitter.com/RogueNASA; AltEPA (@ActualEPAFacts), Twitter, https://twitter.com/actualepafacts.
[v] See, e.g., altEPA (@altUSEPA), Twitter (Jan. 26, 2017, 3:11AM), https://twitter.com/altUSEPA; AltUSNatParkService (@AltNatParkSer), Twitter (Jan. 26, 2017, 2:53AM), https://twitter.com/altnatparkser.[vi] 547 U.S. 410 (2006). [vii] 547 U.S. at 418. [viii] Snyder v. Phelps, 562 U.S. 443, 453 (2011) (internal quotations omitted). [ix] Lane v. Franks, 134 S. Ct. 2369, 2374 (2014). [x] Id. at 2379. [xi] Id. (quoting San Diego v. Roe, 543 U.S. 77, 82 (2004) (per curiam). [xii] Id. at 2377 (quoting Walters v. Churchill, 511 U.S. 661, 674 (1994) (plurality opinion)).
[xiii] See, e.g., @AltEPA (@ActualEPAFacts), Twitter (Jan. 26, 2017, 5:40AM), https://twitter.com/actualepafacts (“Global sea level rose about 17 centimeters in the last century. The rate in the last decade is nearly double that of the last century.”).[xiv] Id. at 2381 (quoting Connick v. Myers, 461 U.S. 138, 150–151 (1983)).
[xv] Connick, 461 U.S. at 151 (quoting Arnett v. Kennedy, 416 U.S. 134, 168 (1974) (Kennedy, J., concurring in part and concurring in the result in part)).[xvi] Lane, 134 S. Ct. at 2381 (quoting Connick, 461 U.S. at 152)).
[xvii] See, e.g., AltUSNatParkService (@AltNatParkSer), Twitter, https://twitter.com/altnatparkser (7,601 followers as of Jan. 26, 2017); altEPA (@altUSEPA), Twitter, https://twitter.com/altUSEPA (94.8 thousand followers as of Jan. 26, 2017); Rogue NASA (@RogueNASA), Twitter, https://twitter.com/RogueNASA (348 thousand followers as of Jan. 26, 2017); AltEpa (@ActualEPAFacts), Twitter, https://twitter.com/actualepafacts (74.2 thousand followers as of Jan. 26, 2017).