Government employees have free speech, too
I seem to recall you answering a reader question about the legality of private employers disciplining employees for going against “media policies” that prevent anyone who isn’t a designated employee from speaking with reporters. According to the research you cited, there is reasonable precedent that many such disciplinary actions would be ruled unconstitutional, a violation of the First Amendment. After the tip came from the anonymous whistleblower, I began wondering, what is the standard when it comes to government employees? I thinking of those who aren’t quite at the level of classified information or presidential phone calls. — Candace
Our expert at the University of Florida’s Brechner Center for Freedom of Information, Frank LoMonte, had a similar conclusion when it comes to government employees, Candace.
Writing again for Poynter, LoMonte pointed out the far-reaching employee gag orders issued during the government shutdown a year ago (yes, that was a year ago already), when reporters tried and were often thwarted from getting perspective from local federal employees waiting on paychecks while furloughed or working. If you recall, we spoke with one meteorologist from the National Weather Service, who went against his directive not to talk to a reporter, but he was our only on-the-record source.
The Brechner Center’s report on public employees’ right to speak to the media, published in October, found at least 20 cases in which courts threw out policies prohibiting public employees from discussing their work without approval to speak to media.
“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,” LoMonte wrote.
Prior-approval policies can make it more difficult for reporters to access the unvarnished perspectives of rank-and-file employees in public systems. Sending requests through an approved media relations employee can add time. These types of policies are common in school districts (several of Jackson County’s districts, including Ashland and Medford, operate as such) and law enforcement agencies.
While most cases challenging employer policies have to be brought by the victims (in this case, the employees themselves), in First Amendment cases, courts have allowed for challenges to be brought by news organizations on behalf of those prohibited from speaking for themselves, LoMonte wrote.
“To justify restricting employees’ speech, government agencies cite their interest in maintaining a favorable public image with a consistent message,” he wrote for Poynter. “That justification should alarm anyone concerned with honest, effective government.”
Of course, some information is protected by law from release: students’ educational records, for example, as well as anyone’s medical records.
But when employees do want to share information with media about concerns or issues, LoMonte wrote, “the agency has no legitimate grounds to suppress that information to create an artificially rosy picture.”
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