AFGE Sues to Protect the Speech Rights of Federal Employees

Categories: The Insider

AFGE and AFGE Local 2578 sued the Office of Special Counsel (OSC) to protect the First Amendment rights of federal employees.

The suit follows guidance issued by the OSC that presumptively restricts federal employees from expressing any opinion on “impeachment” or policy matters if the words “#resist” or “resistance” are used.

“This suit is about protecting federal employees from political retribution in the workplace,” said AFGE President J. David Cox Sr. “OSC’s vague, overbroad guidance creates an opening for managers and political appointees to go after career civil servants for politically-motivated reasons.”

Cox added that the guidance is so broad that an employee could even be guilty of violations if they voice support for the president’s policies. It’s one more example of the ways this administration is eroding institutional norms and attacking merit protections for public employees.

AFGE Local 2578 President Ashby Crowder said the members of Local 2578 work every day at the National Archives and Records Administration to preserve and provide public access to the records of our democracy.

“This opinion is an extreme and unprecedented interpretation of the Hatch Act that violates federal employees' First Amendment rights. The chilling effect it has on the workplace deserves to be challenged," he said.

The guidance , issued on Nov. 27, 2018, purports to describe how the requirements of the Hatch Act—a 1939 law that prevents federal employees from engaging in partisan political activities—apply to impeachment or “resistance.” The OSC’s guidance effectively made discussing either impeachment or resistance presumptively illegal for federal employees, opening them to potential discipline.

Following swift public pushback , including a letter from American Oversight , OSC issued a clarification of its initial position on Nov. 30, 2018 but made no meaningful change to the troubling substance of the guidance, compounding the concerns of government watchdogs, unions, and the public.

The suit filed by AFGE, represented by attorneys from the law firm Arnold & Porter LLP and American Oversight, 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.

AFGE and American Oversight's complaint is available here.

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