The American Federation of Government Employees and AFGE Local 2578 filed a motion in federal court on Jan. 24 to protect the First Amendment rights of government employees during the ongoing impeachment process.
The motion for a preliminary injunction asks a federal court to immediately suspend controversial guidance issued by the Office of Special Counsel (OSC) in late 2018 that has effectively barred federal workers from expressing views about the impeachment of President Donald Trump while at work.
AFGE had filed suit against OSC in August 2019 to block the guidance, but with the impeachment trial dominating national news, the issue has taken on greater urgency. OSC’s policy is chilling the free-speech rights of federal employees even as senior political appointees in the White House and other federal agencies have openly attacked the impeachment process without consequences.
“The Trump impeachment is the major news story dominating the headlines,” said AFGE National Secretary-Treasurer Everett Kelley. “For federal employees, he is top management, and it is absurd to think impeachment of the boss will not be discussed at lunch and at the water cooler. Worse yet, it is a legislative act not related to electoral activity as defined under the Hatch Act. We view it as unconstitutional restraint of free speech.”
The motion was filed as part of AFGE’s ongoing lawsuit to block Hatch Act guidance issued by the OSC on Nov. 27, 2018, which presumptively restricts federal employees from expressing any opinion on “impeachment” — which it equates with “removal from office” — or on policy matters if the words “#resist” or “resistance” are used.
Following swift public pushback, including a letter from American Oversight, OSC issued on a clarification of its initial position on Nov. 30, 2018, but made no meaningful change to the troubling substance of the guidance. OSC confusingly advised that federal employees are allowed to discuss whether the president should or should not be impeached, but they are not allowed to advocate for or against impeachment — a meaningless distinction that has made silence the only safe option for workers wishing to avoid potential punishment.
“The chilling impact of these rules has only gotten worse as the question of whether the president should be impeached moved from a speculative debate to a reality. Government employees have a right to speak about this historic matter,” said Austin Evers, executive director of American Oversight, which is representing AFGE in this case. “We are particularly concerned that OSC has taken no action against high-profile defenders of the president — such as counselor Kellyanne Conway — who, from their government perches, have weighed in against impeachment while ordinary civil servants who might hold different views must refrain from speaking out or risk losing their jobs.”
If the court grants the motion for preliminary injunction, the guidance would be prohibited from taking effect while the case proceeds. The motion is accompanied by declarations of two federal employees and AFGE Local 2578 members whose speech has been chilled by the OSC policy. One is an employee of the National Archives and Records Administration (NARA) in Maryland who wishes to express views about whether Trump should be impeached, but has refrained from doing so because of the guidance. The other member is a NARA employee in Missouri who wishes to use the terms “resist” or “resistance” while at work, but also has refrained from using those words.
AFGE is represented by the law firm of Arnold & Porter LLP and American Oversight. The lawsuit, filed in Maryland federal court on Aug. 13, 2019, seeks to compel the OSC to rescind the November 2018 guidance and enforce the Hatch Act without violating the statutory and constitutional rights of federal employees. If granted, the motion for preliminary injunction would prevent OSC from enforcing the guidance while the lawsuit proceeds.