New Guidelines for Public Employees May Chill Dissent

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Defending Rights & Dissent expresses deep concern about the Office of Special Counsel’s new Hatch Act guidelines. The Hatch Act bars public employees from engaging in certain forms of partisan political activity. It does not, however, negate the constitutionally protected free speech rights of public employees.

The new guidelines pertain to three specific types of speech–strong praise or criticism of federal policies, support for the impeachment of a candidate for federal office (presumably Trump), and support for the “Resistance.”

In spite of the fact that the election is two years away, the guidelines consider Trump to be a candidate for reelection thus altering what can and cannot be said about him.

The new guidelines are correct in asserting that praise or criticism of administrative policy are not political activity in and of themselves. However, they claim that as an election nears and the policy being criticized is no longer in the news cycle such criticisms could become political activity. The guidelines also claim that supporting the impeachment of a candidate for federal office would be political activity as it would prevent the officer holder from seeking re-election. The guidelines also state that while the term #Resist and Resistance have neutral meanings (such as resisting eating a donut), when used in isolation it can be presumed that they refer to wishing for the failure of Donald Trump’s reelection campaign.

These guidelines, which would bar public employees from expressing opinions on these subjects at work, are overly broad and will having a chilling impact on speech.

DRAD Policy & Legislative Counsel Chip Gibbons said the following:  

“The Supreme Court has been clear public employees have First Amendment rights to comment on issues of public concern so long as it does not unduly interfere with the workplace. While the Hatch Act places some limitations on public employees’ speech rights, this new interpretation is clearly rooted in silencing public employees broadly. The Trump Administration has made it very clear that it has deep animus for public sector workers and even deeper animus for internal dissent. This is yet another attempt to stifle dissent amongst public sector workers.”