The Constitution can be heartbreaking sometimes.
The free speech protections enshrined in the First Amendment do not apply to the rogue National Park Service employees who have been tweeting out facts about climate change, courageously defying the Trump administration’s stance on the environment.
Many people have rallied around these government workers, whose social media postings on climate science and research could very well land them in trouble, according to First Amendment experts.
Federal agencies, not individual employees, control messaging on their official accounts, explained Eugene Volokh, a law professor at UCLA who specializes on free-speech issues.
“The First Amendment doesn’t protect [these employees’] right to speak on the employer’s Twitter feed in a way that the employer disapproves of,” he said, pointing to an important Supreme Court case dealing with the speech of government workers.
Esha Bhandari, a staff attorney with the American Civil Liberties Union’s Speech, Privacy, and Technology Project, more or less concurred with that assessment.
“The new administration is entitled to use the official channels of government ― whether they be press briefings or websites or social media accounts ― to put out its own messages, and it can decide what federal employees are allowed to communicate when they are on the job,” Bhandari wrote in a blog post.
This means that these brave employees couldn’t raise the First Amendment defense if they get in trouble at their jobs for these tweets, although there may be other civil service protections available to them.
In addition, nothing prevents these workers from using their personal Twitter accounts to speak out about issues of public concern ― but even there, Bhandari cautions that First Amendment protections “are strongest when they are speaking about issues that do not relate to their job duties.”
There are also whistleblower protections for federal workers who would like to sound the alarm about unethical or otherwise illegal activity occurring at their agencies.
“The federal government must foster an environment where employee disclosures are welcomed,” Carolyn Lerner, the head of the U.S. Office of Special Counsel, said Wednesday in a statement. “This makes our government work better and protects taxpayer dollars through disclosures of waste, fraud, and abuse.”
But on the broader realm of freedom of speech, things are more complicated. Ken White, a longtime criminal defense attorney and First Amendment lawyer, wrote a “cheat sheet” on these issues for people who would like to learn more, which may come handy in the Donald Trump era.
Those limitations aside, public outcry may ultimately play a role.
Heidi Kitrosser, a law professor at the University of Minnesota, told Reuters that the Bush administration caused an outcry in 2006 after The New York Times reported that a public affairs appointee at NASA was essentially placing a gag order on a climate scientist who wanted to speak freely to the press. Things changed at the agency after a congressional investigation.
“Bad press and public pressure help,” Kitrosser said. “The main thing right now is screaming.”