Gag Orders Cannot Trump Employees’ Free Speech Rights
January 25, 2017
Given reports about the current administration’s reported use of gag orders at agencies like EPA and the Department of Health and Human Services, it is more important than ever for federal employees to understand their free speech rights. Federal employees keep their free speech rights when they join the government and after they leave. These rights are protected under the Constitution, federal whistleblower laws, and other laws. Attempts to restrict these rights through gag orders can be illegal and unconstitutional.
First and foremost, federal employees retain their free speech rights under the First Amendment. The Supreme Court recognizes government employees’ right to speak on matters of public concern and, in some circumstances, even express political beliefs. Although the government can impose some restrictions, employees keep many of their core rights and others are protected by statute.
The Whistleblower Protection Act (WPA) and Whistleblower Protection Enhancement Act (WPEA) also protect the speech of government employees. These laws contain broad protections for a wide range of speech, including disclosures of violations of law, rules, or regulations; gross mismanagement; abuse of authority; and many others. Under the WPEA, there is almost always a method for employees to make disclosures to other employees, the U.S. Office of Special Counsel, or even the public and media. Beyond the WPEA, there are other whistleblower protection laws related to specific topics like workplace safety, discrimination, and corruption.
Despite these protections, the government may place certain restrictions on employees’ speech. Agencies can limit disclosure of classified material; impose certain non-disclosure agreements; and may restrict some speech made in the course of their duties. The Supreme Court has also upheld similar restrictions.
Federal employees are protected from retaliation under the First Amendment and the WPEA. Employees may seek First Amendment protection directly in U.S. District Court, but must first go to the U.S. Office of Special Counsel to seek protection under the WPEA. Exercising free speech rights as a government employee can sometimes be difficult. Employees who are considering blowing the whistle or experiencing free speech retaliation may wish to seek guidance about what method of disclosure they should take and how to protect themselves. To discuss your possible whistleblower or retaliation case, contact Kator, Parks, Weiser & Harris, PLLC.