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.