Federal Employees and the First Amendment
Posted By The Federal Practice Group Worldwide Service || 22-Feb-2017
With the recent slew of controversial executive orders and, given our ever-growing contentious political climate, Debra D’Agostino, founding partner with the Federal Practice Group, wants federal employees to know that their constitutional rights do not vanish simply because they are employed by the federal government.
D’Agostino notes an important case, Pickering v. Board of Education (1968), wherein the Supreme Court established that citizens who accept public employment do not surrender their First Amendment rights. Moreover, retaliation for the exercise of such rights is illegal. This decision continues to be upheld as later cases have shown, such as Lane v. Franks (2014).
As long as federal employees exercise their First Amendment rights on their own personal social media accounts, after business hours, their speech is protected. If these rights were exercised while on the job and on behalf of the government, however, it could warrant disciplinary actions.
While the Hatch Act limits political activities of federal employees, D’Agostino explains that it is easy to avoid violating it, so long as you do not engage in political activities while on duty, or solicit political contributions at any time. This does not mean that you cannot express your dissent, but rather that you cannot partake in acts that are directed at the success or failure of a political party, group, or candidate.
Regarding compliance with orders or policy, D’Agostino states that the rule of thumb is “comply now, complain later.” As with most rules, there is an exception. If a policy or order puts an employee in clear danger, they are not obligated to follow it. Keep in mind that federal employment is a constitutionally protected property, which cannot be taken away without due process. If you are terminated for exercising your right to free speech, you have a right to address any charges against you.
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