Do Government Employees Have Free Speech Rights?

Trump’s Department of Homeland Security made a bad mistake this past week. It demanded that Twitter reveal the identity of the U.S. Citizenship & Immigration Service employee who has been sending out tweets criticizing Trump’s immigration policies.  Twitter filed suit on Thursday to block the demand which the government withdrew the very next day, Friday.  Going after a critic’s free speech rights, wow – what were they thinking?

This is not a small matter.  There are 22 million public employees in the country.  A number of Twitter accounts critical of Trump have sprung up that appear to be run by employees or former employees of the National Park Service, the Labor Department and other agencies. 

The Supreme Court has held that government employees generally have free speech rights if they are expressing themselves as citizens on matters of public concern.  That was decided in 1968 in a case called Pickering v. Board of Education.  The government employee in that case was a high school teacher who got fired for writing a letter to the newspaper criticizing the local school board.  That kind of speech is protected, the Court ruled, but the Court later carved out an exception for government employees speaking in the course of their duties.  This is the scope of employment exception, but it does not apply to the accounts on Twitter.  So it’s pretty clear those employees have free speech rights as citizens and the government can’t shut them up.

A couple of other things about this situation are interesting.  First, Twitter argued in its court filing that political speech is more important than other kinds of speech.  That theory comes from a 1948 book Free Speech and its Relation to Self-Government by Alexander Meiklejohn.  The theory sounds good, but I worry that elevating political speech can be used as an excuse to minimize the importance of other types of speech, like commercial speech.  It could lead to the government being able to quash advertising more easily just because it’s not political speech.  That doesn’t sound so great to me.

The other interesting thing is that the ACLU was all set to defend the Twitter user had the case gone forward.  This puts the ACLU on the side of the angels in this matter.  Isn’t the ACLU part of the fringe Progressive Left?  Yes, but it’s also true that Ken Cuccinelli, former Attorney General of Virginia who is a well-respected conservative figure, worked with the ACLU to promote civil liberties issues in Virginia a few years ago.  The thing about civil liberties is that they are what political scientists call ‘cross-cutting cleavages’.  You’ll find support for free speech and other civil liberties all across the political spectrum. That makes for strange political bedfellows, sometimes, as people on the Left and Right join forces to defend the Bill of Rights. Like the time Tea Party Patriots teamed up with the ACLU to fight unlawful data collection by the government.  As Tea Party Patriots said at the time, we have our differences with the ACLU, but there are some issues everyone can agree on.