Can the president control the speech of federal agencies?

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The Trump administration has taken steps to prevent federal agencies from releasing information on science and environmental issues, according to a Reuters report on Tuesday. Employees of the Environmental Protection Agency, Home Office, Department of Agriculture and Department of Health and Human Services have been instructed to limit independent communications with the public, “reinforcing concerns that which Trump, a climate change skeptic, may seek to weed out the research scientists … as well as the career staff members of the agencies who conduct much of this research,” Reuters said.

To find out if the agency’s muzzled employees have a constitutional right to defy Trump’s directives, I asked Heidi Kitrossera law professor at the University of Minnesota who specializes in the intersection of the US Constitution and federal government secrecy, whether the First Amendment allows the government to bar employees from speaking in their official capacity.

The answer, in a nutshell, is yes, although there are some shortcomings, Kitrosser said.

In 2006, the United States Supreme Court considered an anti-retaliation case brought by Richard Ceballos, a longtime assistant district attorney in Los Angeles, who claimed the prosecutor’s office denied him a promotion after he wrote a memo, talked to supervisors and even testified as a defense witness about inaccuracies in an affidavit submitted by investigators to obtain a search warrant. The Supreme Court recognized in Garcetti v. Ceballos that public employees do not give up all of their constitutional rights upon entering public service, but it agreed with the Los Angeles District Attorney’s Office that the memorandum de Ceballos on the inconvenient affidavit was not protected by the First Amendment. because the DA assistant’s speech stemmed from his job.

“We believe that when public employees make statements in the course of their official duties, the employees do not speak as citizens for purposes of the First Amendment, and the Constitution does not insulate their communications from employer discipline. “, said the judge. Anthony Kennedy wrote in the review Garcetti. “The restriction of a speech which owes its existence to the professional responsibilities of a public official does not infringe on the freedoms which the official could have enjoyed as a private citizen. It simply reflects the employer’s exercise of control over what the employer himself ordered or created.

The Garcetti case would make it very difficult for the EPA or other agency officials to defy a presidential instruction not to speak publicly about the agency’s work without risking their jobs. “The Supreme Court has said that in most cases government agencies can tell employees what they can and cannot say,” Kitrosser told me.

Disagreeing with the Garcetti majority, the judge David Soutier said he hopes the court’s ruling doesn’t “jeopardize the First Amendment’s protection of academic freedom at public colleges and universities,” noting that professors have an obligation to share their research findings . Minnesota law professor Kitrosser said it’s possible the Souter loophole for academics could also apply to federal government researchers. This argument, she said, is supported by the Supreme Court’s 2001 decision in Legal Services Corp. vs. Velazquez, in which Judge Kennedy said the federal government could not prevent federally funded attorneys for indigent civilian clients from challenging welfare laws.

Just as such a restriction was seen as compromising an attorney’s essential duty, Kitrosser said, a restriction prohibiting scientists from sharing their research findings could be seen as a violation of scientists’ First Amendment rights.

But that’s long-winded legal theory — not much help right now for supposedly muzzled government scientists. Kitrosser said the story might provide a more immediate answer. President George W. Bush, as she often wrote, tried to centralize the flow of information – and in particular climate change information – from executive agencies. In 2006, The New York Times reported that a 23-year-old NASA politician was trying to block top scientists from disclosing their research. After a public outcry that included a congressional investigation, the space agency changed its policy.

“Bad press and public pressure helps,” Kitrosser said. “The main thing right now is to shout.”

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