Do Government Employees Have Freedom Of Speech?

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This topic contains 12 replies, has 10 voices, and was last updated by  Henry Brown 5 years, 1 month ago.

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  • #178135

    It’s a free country, everybody has freedom of speech, and it is statistically impossible that you will agree with every single thing your agency, another agency or the government does as a whole.

    You want to make the government work better.

    Every day people take to social media, face-to-face conversation and everything in between to say what they think.

    And honest conversation promotes transparency and therefore credibility. To my mind it shows the public that we care.

    However, there are times when speaking your mind may not be the best choice.

    Here are five factors I use to guide and sometimes limit my public comments:

    1–Focus on the general (rules and best practices) not the specific.

    2–Remember that I am in a sense a representative of my Agency’s brand (and the brand of government) whether I am speaking in a personal capacity or not. This is true of any employee of any organization.

    3–Stick to designated roles and responsibilities – in my Agency only Public Affairs or designated experts on specific topics are authorized to explain or comment on what we do publicly, and to address controversy.

    4–Do not do anything that may interfere with mission performance. In some Agencies this is written into a code of conduct.

    5–Confidentiality–don’t talk about things that are nonpublic information.

    From your experience, expertise, or just plain common sense what can you say, and not say, as a government employee writing in a public forum and signing your name?

    (Important note: Nothing here constitutes official advice, and I am not a lawyer. When in doubt, please seek the advice of a competent legal professional.)

  • #178159

    Henry Brown
    Participant

    Would add, based on past experience, that 6. Suggest that comments are cleared through someone in your agency/orgranization. Normally this would be your supervisor but sometimes not terribly practical but …

  • #178157

    Terrence Hill
    Participant

    Good rules of the road. This is probably why 98.567% of Federal employees avoid social networks altogether. It’s not worth the risk to their employment. Some of us are stubborn opinionistas and benefit from the cathartic effects of sharing. Luckily, no one in management is paying attention to 99.999% of what is said on social networks. I try to keep anonymous when approached by the mainstream media to protect the innocent (me).

  • #178155

    Peter Sperry
    Participant

    We all need to develop an understanding of what the First Amendment does and does not protect.

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    All this does is prohibit Congress from criminalizing speech. We are free to speak our minds without fear of criminal prosocustion. That is all.

    The First Amendment DOES NOT prohibit employers, private or public, from disciplining, even terminating, employees for speech the employer finds offensive. There are some additional federal and state laws which do provide some protection in this area but they are not uniform and almost all allow the employer to terminate an employee for speech which, in the opinion of the the employer, brings disrepute upon the employer or misrepresents organizational policy.

    The First Amendment DOES NOT prohibit other individuals from expressing their distain, shunning the speaker or applying other non-criminal sanctions. Any individual can speak their mind; but, any other individual can decide the speaker is an idiot and respond accordingly.

    The First Amendment DOES NOT prohibit employers from considering an individuals public statements when making hiring or promotion decisions.

    So yes, government employees have freedom of speech as defined by the First Amendment. We can say what we want, when we want, how we want without fear of criminal prosocution for what we say.

    But there is no guarantee we will have a job or meaningful promotion potential after we have said it.

  • #178153

    Dave Hebert
    Participant

    This is such a sticky issue — as you posited on Twitter last week, Danielle, the perception of whether we are representing our agency is almost entirely out of our hands. I therefore wholeheartedly second the call for caution and restraint.

    That being said, we are still citizens with full constitutional rights to expression, and when we feel that we need to comment on our government as individual citizens, we should feel free to do that.

    We also need to know how to do that safely and wisely, and that is the part that is becoming much fuzzier.

  • #178151

    David B. Grinberg
    Participant

    Another point to add to the list:
    * Also consult a constitutional law expert/attorney, as well as national free speech advocacy groups that protect the cherished First Amendment rights all citizens hold dear. Free speech and free expression makes America a shining beacon of hope and democracy in the global community.

    Free speech groups and legal/educational defense funds span the ideological spectrum because free speech is an inherent cornerstone of our democractic form of government.
    Moreover, check relevant case law. The US Supreme Court has historically upheld broad free speech rights under a wide variety of circumstances and situations.
    Let’s remember that good ‘ole Uncle Sam is not an authoritarian regime that suppresses open speech by the general populace and crushes criticism and dissent of public or private institutions. Freedom of speech is a critically important way of life which distinguishes the USA from dictatorships and totalitarian governments around the world, such as China and North Korea, for example.
    What an American citizen says or does in a personal capacity in their private time should be of no concern to government unless such speech is unlawful under the Constitution.

    DBG

  • #178149

    Mark Hammer
    Participant

    I will repeat the parable of my own experience.

    In the autumn of 2011, there was a thread here, in which I made some comments that some folks thought nicely captured an issue in HRM. One of the interns who was handling the Washington Post column on public servants at the time contacted me and asked if I minded being quoted. I looked over the quote, and felt there was nothing about it that was contentious, critical, or relied on privileged information, so I gave her the OK. Unfortunately, we did not discuss HOW I would be quoted, given that both of us were rather new to this game.

    About 6 or 7 weeks later, the article appeared on-line, and I was called into my manager’s office. He was trembling in anger. Apparently, the web crawler that engages in perpetual search for news items that mention our organization (which show up every morning for folks in management to read) had found this one, where I was noted as an employee of the organization, and my name and affiliation was put in red boldface by the software so that you couldn’t miss it. Given that it was the first and only time I’ve ever seen us mentioned in the Post, management was rather struck by its occurrence.

    The concern and anger, however, was because it looked like I was acting as spokesperson (a role I do not have, and certainly did not pretend to), regarding a matter that is the official mandate of a different agency, and it appeared on a day when we were tabling a big report in Parliament, and many media, senior official, and legislative eyes were turned toward us. The content of the quote was benign, and maybe even banal, but the timing and institutional affiliation made it problematic in the eyes of many.

    Unhappily, all of this occurred on a day off when I was at home, busily baking or something, such that when I came in on Monday morning, fan and feces had already met at high velocity. Happily, I was able to contact the intern right away, who speedily and graciously agreed to edit the article to obscure my institutional affiliation. Also, happily, I had the e-mail exchange between us, such that management could see they were not dealing with any deliberate malfeasance on my part. After much grumbling, I was cleared.

    The point of the parable is not that one should shut up – I have no regrets about the content of the quote – but rather that the manner in which we exercise “free speech” can sometimes have unexpected side-effects that are legitimately problematic in ways we don’t suspect.

    The activity of government has to walk a fine line. As I was noting to Nick Charney on his blog here this morning, on the one hand we foster the citizenry’s trust in us via our willingness to raise concerns in the public interest, and move towards “better”. That can involve some criticism of what is, and what could improve it. But at the same time, part of what fosters citizens’ trust in the bureaucracy is our own expression of confidence in how it does things. Too much doubt on the part of the bureaucracy undermines public trust in the bureaucracy, and there are limits to how well a nation or state can function if trust in the bureaucracy is undermined. Why would you trust the best-before date on food, wear your seatbelt, accept a driver’s license or passport as legitimate ID, or remain indoors when the authorities ask you to for your own protection, if you didn’t trust that the bureaucracy knew what it was doing?

    Certainly, they can be exploited and abused, simply for the purpose of reducing managerial headaches. But for the most part, restrictions on public servants’ speech rights are intended to support the institution that we work (in the sense of a paycheque) and strive (in the sense of public service motivation) for. It would be counter-productive to recommend that people simply stop caring enough to have something to say. But if we believe in the purpose of the bureaucracy, and the shared vision of what that bureaucracy does, at its best, then we exercise restraint, and position ourselves neither at the spineless-opinionless-faceless-bureaucrat end of the spectrum, nor at the contemptuous Nick Swanson end of the spectrum, but somewhere appropriately in between.

  • #178147

    Rod Trevino
    Participant

    I like to think of the statement “the truth is an absolute defense against libel” and hope that it applies to a situation in which I speak. However, this is a touchy subject. Many of my posts on here are reflections of what I have decided I can no longer contain or internalize. I realize that I run the risk of angering the federal gods, but the reality is this, we are not being promoted. We are not being given raises. We are being asked to do more work. We are given less resources. We have people that cannot do the job. We have people that cannot use technology. These are absolute truths. So, if I publicly speak them in my capacity as an observer of the organization, is it wrong? I am not divulging out mission. I am not expressing the opinions of management. I am not showing off the countless emails or OCS conversations I have stored in history that prove point after point I could make. I am just venting. It is all I have left. SO, yes, use common sense. Do not back yourself into a corner. Never name names. Never give positions. Never identify which people or within what division. Be mindful. But be honest. It is only through dialogue that things will change. When it is not seen by outsiders, there is not impetus for change.

  • #178145

    What a powerful conversation.

  • #178143

    Megan
    Participant

    There is definitely a line drawn between what happens at night and on the weekend off the clock and what happens when you are on gov’t time. My blog is entirely a personal blog, and my posts and edits are done on my own time. This includes my work elements which are syndicated, not posted on my blog originally.

    All of the work-related content was released via official government channels, with official approvals.

  • #178141

    William Thomas
    Participant

    It comes down to this: to whom are you speaking for? For yourself and your own views? For your agency and a cleared governmental policy? Who is the audience and how will they perceive your comments? The bottom line is that anything you say that has to do with work will be perceived as government policy and you will be seen as a spokesperson for the government, your department, or your agency. Most folks see the “government” as one big blob, and anyone who is from the government that says anything must be speaking for the government.

    A few years ago I was interviewed by CNN on a fairly contentious issue. I went to a studio over near Union Station in DC. I was the only person in the studio. The cameras moved around by remote control and the interviewer was in California. She was someone I had talked to several time before, and had met when I was in California. I stuck to cleared language during the interview, and it went as planned. The Interviewer thanked me and the interview was over as I perceived it. I relaxed. The CNN correspondent and I then bantered a bit about the weather, our families, and a few other non-work issues. She then asked me what I really thought was going on with the issue. My answer was off script and not cleared, as I did not see it as part of the interview. Guess what was on CNN that night? It was hard lesson, and one I will never forget.

    Freedom of speech. Absolutely! You have the freedom to make a complete idiot of yourself! Just remember, whatever you say will be perceived as official policy.

  • #178139

    Megan
    Participant

    But to be quite clear, although my blog is personal, I don’t stray far from the “official stance” of the OGP or the CABC or any other government-related entity. What makes it “personal” is that I sometimes tie it into personal experiences and/or add my own opinions. Certainly my choice of content is personal as there are so many issues today in government that I have to prioritize based on my own perspective.

  • #178137

    Mark Hammer
    Participant

    Here in Canada, it has lately gotten hard to see the phrase “government scientist” without seeing the word “muzzled”, somewhere within a 5-word radius. The press, and advocacy groups love the expression, and use it at every opportunity. I’ll leave it to you to dig up the particular conflicts, using those key words.

    The conflict, as I see it, is that between two very different professional world-views that do not abide under the same roof very easily.

    The world of policy is one that demands uniformity and consistency. Citizens, other government agencies, other levels of government, businesses, investors, advocacy groups, other nations and international bodies, all want to know “What is the policy direction of your agency/government?”. That direction might be completely pragmatic, partisan, or not. Whatever the case, comms people strive to present a coherent and consistent policy stance to all stakeholders. Diverging from prepared media lines, and timetables of spooling out information, works against this goal.

    In another parallel universe, scientists are trained to value anomalies, and instantaneous discussion. It is the surprising and unexpected, after all, that move science forward and leads to better theories. The possibility that a paper or result or observation announced on a Monday, might conflict with another paper, result, or observation, 3 Fridays later, is not cause for concern, but merely cause for reflection about what ought to be tweaked in the theory. What is of value is not uniformity of findings, but the pattern observed across the preponderance of accumulating evidence. That’s how we’re trained and how we think.

    So comms and policy people want any and all work by government scientists to be more aligned and uniform than it is or even can be, and don’t want it to gum up whatever policy announcements are planned. That’s not wrong, it’s just how they work; I don’t blame tigers for not eating more salad. Scientists, on the other hand, want the freedom to engage in collegial interaction and present their work for discussion at the earliest possible opportunity. What I might know about offshore fish stocks, or glacial melting, or livestock pathogens, or food safety, provides benefit by being presented and discussed in as timely a manner as possible, warts and all. That timetable may not align with the political timetable, even if the findings don’t conflict with the policies (although they might).

    The conflict arises because neither can afford to ignore OR completely yield to the other. Policy that changes with the latest data, or that conflicts with science from its own staff, stops being an identifiable direction that external stakeholders can rely on with confidence. Science that proceeds on its own timetable without connection to the public interest, and its expression in policy, becomes merely academic (not a sin, just better-placed in another context). The two need to get along better, and that requires compromise on everyone’s part.

    I mention this because there IS a responsibility to represent one’s institution in a manner that conveys coherence of vision and direction, and avoids confusion. On the one hand, it should be possible to say “Personally, I think the policies need a tiny bit of tweaking to do as good a job as we hope for, but all in all this is the direction we’re heading in.” On the other hand, media likes a juicy story and conflicts always provide juice, as your own experience indicates. Qualified agreement seems like a no-brainer, but it can be too tempting for some to focus on the qualifications, and ignore the agreement.

    You gots to be careful.

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