Jeff Chiu / AP file photo

Union Sues to Give Federal Employees the Right to Talk ‘Impeachment’ and 'Resistance'

The American Federation of Government Employees argues the Office of Special Counsel violated the First Amendment with guidance on using those terms. 

A federal employee union filed a lawsuit against the Office of Special Counsel Tuesday in response to the office’s guidance on federal employees using the terms “impeachment” and “resist” at work, citing free speech violations and a misinterpretation of the Hatch Act. 

The American Federation of Government Employees's complaint filed in the U.S. District Court for the District of Maryland also argued that OSC does not have the authority to determine what is and is not a violation of the Hatch Act, which limits the political activity of federal employees while on the job. AFGE asked the court to seek an injunction against enforcement of OSC’s guidance. 

In November 2018, OSC issued guidance to federal workers that cautioned them against using the terms “resistance” and “impeachment.” The guidance said, “‘Resistance,’ ‘#resist’ and similar terms have become inextricably linked with the electoral success (or failure) of the president,” so statements with those terms in relation to the president constitute political activity that violates the Hatch Act. In addition, “Advocating against a candidate’s impeachment is activity directed at maintaining that candidate’s eligibility for federal office and therefore also considered political activity,” the guidance stated. 

As a result of much uproar from former government officials, nonprofits and unions, OSC issued a revised version of the guidance that affirmed none of these restrictions apply to federal employees when they’re off-duty. However, AFGE, which represents 700,000 federal and D.C. government employees, and the local chapter in College Park, Md., are still challenging OSC’s guidance because they believe it could be misused.  

“This suit is about protecting federal employees from political retribution in the workplace,”  AFGE National President J. David Cox said in a press release. “OSC’s vague, overbroad guidance creates an opening for managers and political appointees to go after career civil servants for politically-motivated reasons. In fact, the guidance is so broad, an employee could even be guilty of violations if they voice support for the president’s policies.” 

In addition to violating the First Amendment because it is overly broad, the union said the guidance represents content and viewpoint discrimination in violation of the First Amendment because it only deals with statements critical of President Trump. 

“In restricting the use of the term '#Resist' and variations thereof, OSC’s interpretation of the Hatch Act targets and discriminates against speakers who oppose the Trump Administration’s policies,” the lawsuit stated. “The prohibitions regarding discussions of impeachment, in purpose and effect, target and discriminate against speakers who believe that the president should be impeached.” 

The guidance violates the Fifth Amendment of the Constitution as well, the plaintiffs argued, because OSC lacked the authority to issue it. The “Hatch Act does not cover protected speech on impeachment or resist,” the lawsuit stated.

The OSC’s justification for the guidance is that since President Trump is a candidate for reelection, federal employees may not take action while at work that helps or hinders his election. “It does not impose any restrictions on the ability of employees to engage in political activity while off-duty and away from the workplace. Equally important, the guidance does not limit whistleblowers in any way from reporting or disclosing wrongdoing,” the revised guidance stated. Also, employees may use terms “resist” and “the resistance” while on duty to discuss topics besides the president.

On impeachment, OSC wrote that the intention was not to end all discussions about the issue; however, the office “advised against this activity because OSC considers advocacy for or against the impeachment of a candidate for federal office to be political activity under the Hatch Act.” OSC also drew a distinction between discussing impeachment and advocating for or against it. 

Daniel Jacobson, senior associate at Arnold & Porter and one of the attorneys for the union, told Government Executive, “If somebody asks me, as a lawyer, how do I tell the line between speaking about impeachment and advocating for impeachment, it’s a very fuzzy line.”

Joanna Friedman, a partner at Federal Practice Group, said OSC’s guidance “seems a little over the top,” because “employees may express their opinions about current events and matters of public interest at work so long as their actions are not considered political activity.” The issue here, she noted, is whether or not this language is considered “activity” under the Hatch Act. 

In terms of the First Amendment charges, Friedman said, “Since OSC does have the jurisdiction to make a determination of whether an employee has violated the Hatch Act, it seems like they would be within their rights to issue such guidance.” However, she said she does think AFGE makes a solid argument that OSC misapplied the provisions of the Hatch Act in the guidance.

Since several Trump administration officials have been accused of violations and “no serious consequences have come,” she said. “The Hatch Act is a hot-button issue right now.” 

Most recently, Politico reported on Monday that Senior White House aide Kellyanne Conway avoided getting fired after her Hatch Act violations because the Merit Systems Protection Board was not able to weigh in since it doesn’t have enough sitting members currently. 

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.