Whistleblower rights supersede speech restrictions, and any gag orders that neglect to spell that out are illegal.
The Trump administration loves gag orders. From banning unapproved congressional communications to censoring government scientists, these speech restrictions have at least one thing in common: their issuance is illegal unless the recipient is also reminded that their whistleblowing rights supersede any order’s restrictions. Even though whistleblower and appropriations laws let Congress slash the salary of any official who enforces an unlawful gag order, speech restrictions without reminders persist. And they’ve specifically targeted government scientists during the pandemic.
We work at Government Accountability Project, a nonprofit organization that works with whistleblowers and on whistleblower policy. On Monday, our organization and others concerned with good government wrote to 25 federal departments and agencies to alert them of these anti-gag laws and to ask them to remind their workforces of their whistleblowing rights. Most of these agencies haven’t received a refresher on their workers’ anti-gag rights since the Office of Special Counsel issued a reminder at the start of the Trump administration. As we approach a presidential transition in the midst of a pandemic and an acute economic crisis, there’s simply no time to chill federal workers from making whistleblowing disclosures. Agencies must take action to ensure their employees are aware that they can speak up to identify waste, fraud, abuse, threats to public health and safety, and violations of laws, rules, and regulations regardless of any restrictions imposed on their speech.
Even if agencies refuse to heed our request, it’s vital that federal workers understand their whistleblowing and anti-gag rights. Here’s what federal employees need to know:
A gag order is a “non-disclosure form, policy, or agreement” that restricts federal employees’ speech. The Office of Special Counsel, a small government agency that enforces whistleblower laws, reads that phrase broadly to mean any management communication. These anti-gag laws aren’t limited to forms and policies and agreements. If a manager stops by your office, puts up a poster, or sends you an email to restrict you from communicating something to someone, then you’re experiencing a gag order subject to these laws.
But there’s no need to worry. Congress included anti-gag protections for federal employees in the 2012 Whistleblower Protection Enhancement Act and their annual appropriations bills. The whistleblower and appropriations laws say that gag orders cannot supersede workers’ whistleblower rights; beyond this platitude, the laws require that gag orders be accompanied by a paragraph-long reminder that spells out the supremacy of workers’ speech rights. That means any nondisclosure agreement you sign or even a restrictive email from your supervisor must include a lengthy clause reaffirming that whatever restriction you face does not supersede your ability to make lawful whistleblowing disclosures. Otherwise, the gag is likely unenforceable and can be challenged either through the Office of Special Counsel or Congress.
If this seems overly cautious, that’s because it is. These laws were designed to prevent a chilling effect on federal workers to dissuade them from reporting wrongdoing they witness in the workplace. Many would-be whistleblowers are unaware of their rights, and may be suppressed into silence thinking that their agency’s restrictions—not their whistleblower rights—control their speech. This is why Congress provided these anti-gag protections: to limit the chilling effect gag orders can create.
Knowing your rights is especially important at the end of an administration whose liberal use of gag orders gave good government groups heartburn. During this difficult transition, federal employees must ensure their missions are dedicated to advancing the nation’s interests. They’ll need to be able to exercise their rights to tell the truth regardless of any restrictions they face. By blowing the whistle on violations of records requirements or the dangerous politicization of science or intelligence, federal employees can spotlight problems for both incoming managers and their congressional overseers. These disclosures, which can be lawfully made regardless of any gag order, can galvanize positive change across the nation, spurring accountability from Congress, the media, and executive branch watchdogs alike.
If you receive a gag order lacking the statutorily-required phrase, then you should know your rights. Don’t be chilled by it. Don’t be scared into silence. Don’t sit on information that could help your agency and your country. Seek out legal counsel and speak up. Your right to do so has never been more important.
Irvin McCullough is the deputy director for legislation with Government Accountability Project, a whistleblower support nonprofit. Aman Panjwani is a democracy fellow at the organization.