first amendment government employeesBack in the day, a reporter could call someone at an institution or government agency, do an interview and write a story. Those days are long gone. All inquiries now get sent straight to the press office. Frequently, the response is an anemic written statement.

Understandably, organizations want to control their message. But what rights do government employees have to speak publicly – to the press or otherwise? And how do whistleblowers protection rules dictate what an employee can disclose to the public?

Two pieces out this week talk about free speech rights for government employees. The Poynter Institute, a journalism training center, highlights a new report from the University of Florida on the first amendment and public employees right to speak to the media.

Note that whistleblower protection rules sometimes dictate whether it is wise for a whistleblower to go to the press.

Although the practice of gagging public employees from giving unapproved interviews is pervasive across all levels of government, decades’ worth of First Amendment case law demonstrates that blanket restrictions on speaking to the media are legally unenforceable.

As far as we can discern from publicly available court cases, no agency has ever prevailed – from the 1940s to the present day – when a policy forbidding unauthorized interviews was challenged as a First Amendment violation.

In a related case, the National Whistleblower Center filed an amicus brief earlier this month defending a government employees’ right to testify in court. In 2016, an employee of San Miguel County Road testified in a child custody case that involved a co-worker. He said he was later reprimanded and demoted.

Butler filed a lawsuit citing his free speech rights. So far, the courts have rejected his argument, but an appeal is pending.

The amicus stresses the need to “protect the right of government employees to testify even when the outcome may be adverse to the interests of a supervisor or manager.” It also calls upon the Court to “avoid the massive chilling effect” on government employees by “preventing government employers from retaliating against employees for testifying under oath in judicial proceedings.”

The brief concludes:

The rule of law is threatened whenever witnesses are subject to retaliation. Such retaliation will create a massive chilling effect, regardless of the cause of action underlying the testimony. Truthful testimony in  court is not simply a public duty for which witnesses should be thanked. Protecting witnesses who provide truthful testimony in court is a predicate for public respect of the entire judicial system.

 These rules don’t apply in the private sector,  University of Oregon law professor  Elizabeth C. Tippett writes.

Let’s say you have the day off, and you decide to join a march through the streets. The government can’t just arrest you or banish you to another country. Your activism is protected under the First Amendment.

Those rights fall away the minute you cross the threshold into your job. Unless the government’s your boss, you stop being a citizen and become a worker subject to your employer’s rule.

She notes that there are certain circumstances in which employers cannot retaliate against workers. For example, workers can’t be fired for union organizing. But, Tippett writes, these protections are limited and the law tends to lag years behind the reality of the workplace.

Even whistleblowers who unearth illegal conduct have to walk a tightrope if they want to keep their jobs. For example, the anonymous national security whistleblower who complained about Trump’s alleged call with the Ukrainian president would have lost legal protection – and faced potential criminal prosecution – if he or she went straight to the press. The whistleblower could maintain protection only by complaining confidentially within authorized government channels.

Different rules apply to whistleblowers outside the intelligence community. For more on those,see our FAQs.

  • Also of note today, from The New York Times.  We Need More Government Whistleblowers: New York City requires its employees to report corruption. It has worked.