In the midst of of a clampdown on federal agencies’ public communications by the Trump administration, lots of people are asking about what rights federal government employees have to continue speaking to the public. The short answer? It depends.
The new administration is entitled to use the official channels of government – whether they be press briefings or websites or social media accounts – to put out its own messages, and it can decide what federal employees are allowed to communicate when they are on the job. But the First Amendment still protects those employees’ ability to speak in their private capacities, on their own time, about matters that concern the public.
At the moment, different federal agencies have reportedly imposed different restrictions, from the Department of Agriculture to the Environmental Protection Agency. These restrictions vary, from to preventing communications with . It is unclear how long the freezes will last or whether some of the directives were .
It’s certainly understandable why many people are alarmed over communications bans on the important work of our federal agencies, particularly where the public about critical government functions. However, one of the consequences of the election is that the new administration now controls what federal agencies say and what side of an issue they take in a debate about, for example, climate change or reproductive rights.
What the government cannot do is impose an overbroad muzzle on its employees that prevents them from speaking out at all.
What do federal employees remain free to say? The Supreme Court has stated clearly that public employees cannot be fired for as s. Practically speaking, this means that – with the possible exception of certain high-ranking government officials – an employee can speak on personal time and in a personal capacity about matters that affect the public. Their protections are strongest when they are speaking about issues that do not relate to their job duties. For example, a scientist who works at the Environmental Protection Agency is free to research and write academic papers on her own time, which she can then publish under her own name. A State Department employee can attend a local school board meeting and express support for a measure being proposed. To the extent their speech meets the above requirements, employees can even speak anonymously. (One that launched last night seems to be run by a handful of National Park Service rangers apparently writing during their personal time.)
These are general rules, and there are exceptions, such as when an employee’s speech causes disruption to the workplace. But properly construed, any exceptions should apply only in those cases where the government’s interest in carrying out its duties is truly impaired by what an employee has said.
The ACLU has repeatedly stood up for these principles, including recently in representing the former chief prosecutor for the Guantánamo military commissions who was fired from his job at the Congressional Research Service because of opinion pieces he wrote about Guantánamo that ran in The Wall Street Journal and The Washington Post. That case demonstrated the importance of maintaining ample breathing room for public employees to speak: They are often the ones with the most relevant expertise and intimate knowledge of how government works, and can bring a unique perspective to public debate about critical issues.
For these reasons, it is essential that courts continue to robustly protect public employees’ ability to speak out – not only because they do not surrender their First Amendment rights when they take on government employment, but also because the public needs to hear their voices.
The administration may be able to control certain official communications channels, but the public isn’t powerless. We can pressure elected officials to be more transparent. We can support independent journalism and nongovernmental organizations that defend whistleblowers.
Our values of open government, transparency, and democratic accountability depend on it.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.