Judge says Education Dept partisan out-of-office emails violated First Amendment

Is a judgement worth the paper it’s written on when it’s ignored with zero consequences?

She is doing a fine job, being greatly assisted by A1.

A1 also assists the flavor of steaks and burgers.

For other parts of the world looking in, yes.

Why would it be ignored? Say what you want about the executive branch trying to weasel out of things and get the Supreme Court to lift holds, but they've so far been unwilling to out and out disobey finalized court orders.

Ties those who ignore it closer to the group in power: more to lose when they lose it. Every little erosion of law adherence creates more of that cheap loyalty substitute.

The point is they wanted to eliminate the department entirely, but couldn’t, so installed the most inept person possible.

Same is true for nearly every other appointment.

We thought Betsy Devos was rock bottom but then 47 told his 45 past self, "hold my beer."

First Amendment is quite important.

When you are a backstabbing administration who demands yes-people, you have difficulty attracting qualified candidates.

As a result, you have incompetent people running things.

People who do things like violate federal law because they're too dumb to think before they act to curry favor.

It's honestly been fascinating watching the people with a modicum of self preservation sense (Marco Rubio) versus those who don't think actions will come back to bite them (Linda McMahon, Pete Hegseth, Kristi Noem).

From a purely practical perspective, you'd have to be stupid not to evaluate decisions with an eye towards "Will I be prosecuted at a future date for this?" in this administration.

> I just don't think this is the sinister power move they are claiming. It's not that deep.

If mass scale identity theft to push your propaganda isn't crossing the line, I don't know what is.

'We lack the power': Justice Barrett basically admits SCOTUS can do nothing if Trump violates rulings

https://lawandcrime.com/supreme-court/we-lack-the-power-just...

“the First Amendment is a cheap thing if all it provides is the assurance that one may say what a current majority is willing to hear.” Charles Rembar

Of course it is, and the union people must be delighted and that's fine with me. But come on. This is hardly the great poster child of First Amendment privileges. This is a departmental squabble that has been allowed to balloon way out of proportion. I can't imagine a more irrelevant affirmation of constitutional rights.

> I just don't think this is the sinister power move they are claiming.

Where did they claim that this is a sinister power move? Those words don’t appear in the article or in any filings as far as I can tell. Are you saying that it isn’t the sinister power move that you imagine that they could have claimed?

So you would be okay with your employer putting words in your mouth?

In what way is a blatant 1st amendment violation not a great poster child here? Because it sticks in your craw?

All they need to do is rule that violation of court orders is not protected by qualified immunity from civil lawsuits, a principle SCOTUS invented itself.

As a contrararianI'm silenced a lot. How do you suggest alignment can happen if more persuasive dissenting voices are allowed to be heard?

Silenced by whom?

Careful. I might sue:-)

I am massively tempted though...

They are adding up. They can ignore them, and when they are out of office, the reckoning will come.

>you'd have to be stupid not to evaluate decisions with an eye towards "Will I be prosecuted at a future date for this?" in this administration.

Stupid or placing their bet in a future where they never lose power.

From ICE agents and DOGE members to higher office, there’s a lot of people who know their lives will be destroyed the very moment the wind blows the other way. It is a sobering thought.

I wouldnt have imagined at the time that the worse part of electronic messages is that they could one day legaly be written in your name. I thought things coudnt be worse than not being allowed to speak (which was already normal at the time)

Not for the President, unfortunately. Supreme Court precedent has effectively set him as immune from prosecution, and it's not like at his age he'd serve much time anyways.

I expect a lot of his administration to spend their latter years in jail though. Siding with him has basically never paid off for anyone.

It's the right call, but really, those notices were probably doing the administration more harm than good. One of the sweatier message campaigns we've seen in the recent history of US politics.

That's why they're not leaving office. Check out Venezuela for a preview of what's in store for the US.

There’s always treason

GP isn't the government, so you'd have a tough time bringing a first amendment case, alas.

I suppose the First Amendment takes precedence over the Hatch Act, but it's more blatantly a violation of the latter.

Should we only correct violations that would qualify as a "great poster child," then? Let them all fly if they're not sufficiently big and flashy for you? Perhaps we should ignore theft that doesn't meet your personal financial bar, too?

Even the smallest authority may want to force others back in line.

I suspect many of the more ridiculous rulings come less from Roberts agreeing with Trump, and more fear of actually placing Trump in a position to straight ignore the court, which he will do.

There is likely a pragmatic view that if they appear to remain relevant they might continue to have some power, even though they already don't.

They also had their own messages removed.

It's not clear to me that they're guaranteed a platform on their work email, but having been allowed to set a message and then having it removed and then replaced with a different one is not a good look for free speech.

They won't ignore it. They'll comply with replacing the partisan message, and move on to dozens of other violations. It's not so much the judgments as that the courts can't keep up.

Not every failure is meaningful on its own but it would at least spiritually be a very different country today if they wasn't such a pattern of sustained opposition and losing in the courts going back 2017.

“Your ideas suck and you should stop espousing them” is free speech too.

Contrarian on taxes, spending, organizational issues, democracy versus monarchy?

Or it, you know, those contrarian views? You know the ones.

(Personally, I'm a contrarian about the presence of fire in crowded theaters, and boy have I been silenced)

I think we can all agree on this. It would just be nice if there was consistent enthusiasm for the first amendment when it comes to actual taboo ideas. Are you quoting this when you hear about right wing extremists being canceled or jailed in Europe? In the 1970s, Jewish lawyers at the ACLU defended the American Nazi Party’s right to march in Skokie. Not out of support, but to uphold the principle of free speech for all. What happened to intellectual honesty?

I mean, you'd think so, but the past dozen years have repeatedly demonstrated that there's quite a few people who don't seem to realize that this sort of thing is, in fact, bad.

I find partisan messaging on government sites to be sleazy. But also I don’t understand how this is a violation of government employees’ rights. When people are employees of the government, they don’t have rights to use the resources of their job as if they own the same resources as a private citizen. Their speech is restricted to some degree as part of doing their job, and they are employed to do their agency’s bidding. How is their private right to free speech violated here?

It would have precedent in the Supreme Court... https://en.wikipedia.org/wiki/Marbury_v._Madison#Political_d...

> What happened to intellectual honesty?

It’s gone. The ACLU itself is pretty anti free speech these days and happily looks the other way when censorship on private social media platforms aligns with their ideological views. People have been writing about free speech issues at the ACLU for about a decade now:

https://www.tabletmag.com/sections/news/articles/is-the-aclu...

I fundamentally don't understand the rights of government employees. They are supposedly there to execute the will of the political branch that controls them whether or not they agree with it, which is why they are given immunity from firing by each incoming administration. So how do they also have the right to personalized communication from their work email addresses (a right that no private sector employee has)? How can they have the right to exercise government authority without being democratically elected, or at least accountable for their actions to someone who is?

Can you explain what you mean, in more direct or simpler terms?

Is there no federal defamation law that could apply here? I would've thought this would fall under something like that, rather than 1A. Even without 1A, you could still be defaming someone by misrepresenting that they hold a certain view, right? I know states have laws against this regardless of the constitution, but is there no such thing at the federal level?

They could have let him go to jail before the election instead of ruling that the president is a king.

Qualified immunity in no way limits a court’s contempt powers.

This is not a case where the government is telling employees that they cannot say certain things while on the job. That would be reasonable (see the Hatch Act, for instance, which the Trump administration violates constantly). It is compelled speech. They are sending out a message from that person without that person's knowledge or consent. The first amendment prohibits the government from forcing someone to say something that they do not want to say. That is true even for government employees (see https://en.wikipedia.org/wiki/Janus_v._AFSCME)

I mean it depends on what we are talking about. The case you mention was about the right to peacefully assemble, and that the swastika does not count as "fighting words" and thus not grounds to say the assembly isn't allowed. In the case of Europe, they don't have the same constitution as the USA so I'm not sure how to compare that, and if those extremists are merely being silenced over swastikas or calls for the deaths of people since you didn't specify.

Plus the comparison to Europe and that specific case is especially untenable because if the specific case in Europe was in Germany, then they have a special relationship with the swastika.

So the judge's quote from the article is "and they certainly do not sign up to be a billboard for any given administration's partisan views."

I thought that's exactly what you signed up for when you become a government employee.

People in Europe are also human beings and so they also have a natural right to free speech. They just happen to live in oppressive governments willing to use violence against them for expressing their natural right to speak their opinion.

> Their speech is restricted to some degree as part of doing their job

There are at least two kinds of speech restriction - not being allowed to say something, and being compelled to say something. To analogize, it's one thing to be told "you're not allowed to rant about the CEO on social media". It's another thing entirely to be told "you have to make 3 posts a day about how great the CEO is".

These federal employees were not just restricted from publicly criticizing the administration - which is fairly typical for federal employees - but they also had their out of office messages changed without consent to point partisan blame for the current shutdown. That's essentially compelled speech, especially since Out Of Office messages still include the employee's name as the From line.

You're correct that you don't understand how those rights work.

I think you're actually struggling more with the idea that the First Amendment is a restriction on government, not on employers generally.

But the most relevant thing that you don't understand is that government employees are NOT supposed or allowed to act in partisan ways. Your suggestion seems to be that's the point of the job. In fact, that type of activity is prohibited in their official functions and can even be illegal.

"... to the best of my ability, preserve, protect and defend the Constitution of the United States."

I missed the part where government service wasn't about upholding and implementing the law but was instead about support for a particular party.

Exactly. It’s interesting that despite many countries sharing classic liberal political attitudes don’t have constitutional protections for free speech that go as far as the US. In my view free speech is the most fundamental requirement for any free society and democracy can’t work without it. But as we see with the UK right now and others, speech is impeded frequently.

> It's another thing entirely to be told "you have to make 3 posts a day about how great the CEO is".

This is perfectly legal and not a violation of any rights. Companies literally have entire departments dedicated to promotion of their products. If you say "I hate this product and don't want to work on promoting it" you will just be fired for refusing to do your job.

Why is alignment necessary? In our system compromise is the typical alignment sought where no single view dominates the decisions or direction. With enforced alignment no compromise is more than not necessary it’s not possible. That’s the dysfunction of the present because there’s a perception that holding office entails enforcing alignment, and opposing voices not only need not be heard but are forcefully silenced. However the system we have in the US doesn’t allow for that, and explicably, it’s even more dysfunctional than normal. Sooner or later they have to stop and compromise, over throw the system, or be removed. That’s precisely how it’s designed to work.

So, you shouldn’t be silenced, your opinions should be heard, and to the extent they’re reasonable, they should be considered proportional to your ability to influence. The more to which this is prevented or ignored the more unstable the system is.

Civil actions aren't subject to presidential pardon.

Free speech is out of vogue

You’re not actually refuting the argument of the person you’re replying to. They’re saying that when you’re employed by the government, you’re paid to do a job and you’re at the service of the agency and leaders you work for. Your rights as a private individual do not apply when you’re paid to do a certain job.

As an example, if an agency wanted to perform a marketing campaign, and you decide to do go off script as an employee, you can be fired. There is no legal right to say whatever you want in the context of the job.

What exactly do you think you deserve that you're not getting?

There’s a difference between being required to perform the normal functions of the government and being required to espouse a political philosophy. The Hatch Act makes it clear that you can have a political opinion, but that it occurs on your own time. So the rationale of the court is “nobody is allowed to use their office for politics” and “by putting words in government employee mouths, their right to free speech is being abridged.”

5 U.S.C. § 7323(a)(1): “An employee may take an active part in political management or in political campaigns, except an employee may not — (1) use his official authority or influence for the purpose of interfering with or affecting the result of an election.”

There’s a lot more after that.

https://www.law.cornell.edu/uscode/text/5/7323

It's actually mostly forbidden if you're a government employee. You serve the people not the politics

I think you overestimate how anyone cares very much, in comparison to more important matters.

The rules are different for the government. Protection for private employees are weaker. The government has the force of law (literally force) on its side, so what it is allowed to do is different. A private company cannot truly compel an employee because the employment contract is at-will: either side can terminate the arrangement without cause.

But government employees obviously do not have 1A rights in their role as employees. e.g. if a government employee feels like wearing a nazi uniform to the office every day, they will be fired, even though 1A prevents the government from punishing private citizens for doing the very same. Firing the employee is not violating 1A but charging them with a crime would be.

And how do you define "partisan" here? How can your job be to implement the policies set by politicians, but not be "partisan."

This case wasn't about workers saying "whatever they want."

This was about partisan speech being compelled by government, which in fact most government employees aren't even allowed to engage in on the job. They are legally required to act in a nonpartisan way.

Failing to act in a nonpartisan way can result in Hatch Act violations, ethics investigations, or even criminal penalties. So yes, having the federal government compel them to engage in partisan speech is a problem.

Sadly, agreed. The ACLU used to be known as a stalwart on this, fighting for the right of the KKK to hold marches etc. The "their speech might be reprehensible, but we need to fight for all free speech" perspective.

Now, they're uninterested in a lot of these issues.

And I say this as someone very liberal.

You can also separately debate where the line is on the topic of say "absolute free speech", but whatever the ACLU used to fight for, it fights for a distinct subset only, now.

Hatch Act is different from the first amendment.

How can your job be to both implement policy set by the politicians currently in office (presumably decided by their political philosophy) without regard to your own opinions and also to not espouse a political philosophy?

It's irrelevant how I define partisan. More important is how DOJ defines it. https://www.justice.gov/jmd/political-activities

This case wasn't about a worker making statements themselves. It's about compelled partisan speech by the government.

Yeah. It died during COVID.

That is both true and irrelevant. The decision itself quotes from SCOTUS on the Hatch Act in making its point about the First Amendment violations.

"[I]t is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent."

I guess the part I don't get is how having a message in the email signature of your work email can be construed as expressing a personal opinion.

As for the Hatch Act I believe that the administration is 100% in violation, but it doesn't seem like a 1A violation.

Leaving aside the partisan aspect - you have to acknowledge that there is a difference between a statement that "The DOE is shutdown because X" and an email that says "I am unable to work because X". You made a statement before "organizations have entire departments intended for this" - yes, and those individuals are quotes as spokespeople, "A spokesperson for the department said xyz" not "I want to tell you xyz".

People in Europe live in actual democracies (for the majority). The laws restricting speech were born through democratic processes.

Who do you think you are to pretend to know better than these citizens? You seem to want to impose some unbridled "free" speech that seem to have pretty disastrous effects in the only country where it supposedly exists... is this your idea if "freedom"?

We have tested the limits of tolerence at the cost of literal tens of millions of deaths during the last World War in Europe, I don't think we need any lesson on how we should run our societies regarding free speech because we have done a lot of painful learning.

Looking at the direction/unstability of the American system currently it's not impossible that its people will do the same kind of learning soon unfortunately, might be better to focus on this rather that trying export ideas that we democratically rejected, with purpose.

Come, come, my good sir! US citizens know that censorship on private social media platforms is NOT a First Amendment issue! While it may be censorship of a sort, it's not done by the US government, and therefor is allowable. This is middle school civics in the USA, old boy! There's nothing, nothing, in the US constitution that says anyone else must pay to promulgate your opinions. Freedom of speech is freedom of government suppression in the USA. But like almost everything else in the USA, it's up to you to pay for it.

> I guess the part I don't get is how having a message in the email signature of your work email can be construed as expressing a personal opinion.

If that were the entirety of your argument, I'd actually be in agreement with you. It wouldn't surprise me if this decision got overturned on those grounds.

But on your second point, the current Court expressed its views on compelled speech and the First Amendment as applied to government workers in the Janus decision and this judge is merely following that precedent. It is stated very clearly in the decision.

By that same logic the government can't truly compel either as long as they only fire the employee. Obviously the government would be in violation of 1A if they took it further by charging the employee with a crime.

The US government can exert control over aspects of employee communications related to their job function.

The US government cannot require employees to express political views unrelated to their job function.

The US constitution places restrictions on the government that don’t necessarily apply to private sector employers (or that don’t apply in the same way).

It is a 1A issue when they are censoring due to government pressure

People in USA live in a constitutional republic based on self-evident natural rights given by god. We just have (somewhat) democratically elected representatives.

In an "actual democracy" with no constitutional rights, the majority can (legally) genocide the minority - and that's happened more than a few times in "actual democracies" in Europe in the very recent past.

You should probably think deeper about what you're advocating for.

There is a huge difference, but both are compelled speech. The difference is that when it is a message in support of one political party the government is violating the Hatch Act (as they clearly are in this case), not the first amendment.

> In the 1970s, Jewish lawyers at the ACLU defended the American Nazi Party’s right to march in Skokie.

Well, that doesn't mean that

a) they were right to do so then, or

b) a better understanding can't have been reached since then.

The Paradox of Tolerance is a very real thing. If you want to make free speech absolutism a religious principle within your own beliefs, go wild, but for those of us who just want to make this world the best place we can to live in, we have to consider what the consequences of different kinds of speech are.

And the consequence of being tolerant of hate speech is that the speech of those being hated diminishes. Their freedom diminishes. Their safety diminishes. Sooner or later, they are driven out of communities that permit hate speech against them.

"Free speech for all", in the sense that absolutely anyone is fully free at any time to say anything they want, and everybody remains equal in this, is a fantasy. And American jurisprudence has rejected that level of "free speech" since very early on—there are laws against libel, incitement to violence, false advertising, and other forms of speech.

We genocided the native Americans. Our president wants to genocide brown people. The government is almost wholly owned by wealthy individuals and corporations. A majority of our government is actively working against the good of humanity, much less the interests of the nation.

America now has a literal secret police abducting real people on the actual streets in broad daylight.

Upon losing the previous election our president staged a coup and faced no consequences and won a reelection.

We are no longer a great, free nation, and you really need to understand that fact. America has been lagging behind the rest of the free world for half a century or more. Pretty much everyone has it better than we do.

Not what I'm arguing, I agree with you. Nobody is compelled to carry your speech, with a rare "common carrier" exception. Which social media is not.

You've got me thinking. I'm sure there's government pressure on social media to not carry certain posts, or allow certain human access. That's a pretty clear 1st Amendment violation. But it shades off. What about say, NSA using it's total information awareness feed of the entire internet to let HN know when a terms-of-service violation happened. Is that OK? What about if the NSA selectively notifies Truth Social of TOS violations? What if the NSA sends an official lawyer around to Facebook to get them to modify TOS a particular way? What if the DoJ sends someone to Paul, Weiss to get them to send someone else around (pro bono!) to hint that modifying TOS a particular way would be beneficial to Bluesky? What if Zuckerberg calls up Trump and asks him how he'd like TOS to read? I'm not sure where the line is.

Only individual people can be defamed, not political parties.

Plus what is being asserted is not really a factual statement so it can't be a lie.

Politicians are allowed to say things like "my opponent believes such and such".

funniest thing I’ve read in a long time - cudos mate, well done

> The Paradox of Tolerance

This phrase needs to be used (and understood) more often. People who act in bad faith use this to their advantage and make our society worse. Look at the response to the Kirk murder: people were fired for daring to say something negative after his death.

On paper, free speech in the US appears sacrosanct. But in practice, top gear once did this:

https://www.youtube.com/watch?v=pKcJ-0bAHB4

Maybe played up slightly for TV? But the impression is given that -in practice- they could not exercise their free speech in person in the US, but were fine broadcasting it in the UK.

Who's the "we" here? You and your posse genocided native Americans? How are you not behind bars?

Implementing a policy and personally advocating (in speech) for a political party line are two different things

Pretty standard narcissistic attitude: I'm smarter than everyone else, I know that if they hear the Nazi stuff, they won't be able to tell it's demented nonsense because they're not as smart as me.

So the only way to keep society safe is super smart people like me get to control what other people can say - reasoned as always in such a sophisticated way.

As always, society carries on only so long as its enemies are kept at bay.

Whenever someone uses "we" to refer to a body politic, and doesn't otherwise specify, it's meant to refer to the collective polity throughout its history.

So, the democratic-republican "we". As compared to the royal "we".

As to why no one was behind bars? Because "we" also made those bars.

What does this mean in practice, the signature override just needed to add " - Trump" at the end to be kosher?

It was probably in the penumbras

> I'm not sure where the line is.

The line is always where a criminal violation seems likely to occur, including criminal negligence. Otherwise the government has no business butting in, unless subpoenaed as a witness by a court in a civil matter.

Edit: I guess the government also has a right to respond if it, or its policies, are a target of criticism or lies. But it should do this in the court of public opinion, or in an actual court if said speech breaches criminal law or a civil tort. Though in the latter cases it would be held to the highest standard. It has no right to otherwise shut down anyone's speech regardless of where it occurs.

Reality TV is not real, it's all scripted. Yes, every single show is fake. Anyone in the industry will tell you teh same thing. Why would it not be fake? It's not illegal for production companies to make their shows interesting... Lol.... (wow man)

They could have done whatever they wanted to do and maybe local police could have arrested them but they would have been acquitted by an appeals court thanks to our constitution.

That should have been their hay day. The government pulled enough absolute nonsense to keep them busy for decades. But instead they seemed more interested in some bullshit like prisoners rights to masks or something.

When trump was first elected I gave those guys like $300/month to fight the good fight against something I was told was a threat to my freedoms. The joke was on me though… because they very same set of people I thought cared about that stuff turned out to very much not care at all about literally anything they claimed to. They let the world burn to play politics.

In the end I wound up voting for trumps second term and will never ever vote for a single democrat again in my life. As for the ACLU, what a shame.

Are the native Americans also in that we? If so why did they genocide themselves - sounds a dumb thing to do

Covid policies in a nutshell. The funny part was all those smart people still to this day don’t understand how badly they got played. I guess many didn’t though. Many of the most ardent supporters were the recipients of vast amounts of upward wealth transfer… it takes an immense level of privilege to support any of that nonsense.

I think the idea of the comment you replied to is that the people whose out-of-office messages these appear to be are being defamed through the appearance of being partisan, or more strongly through the appearance of violating the Hatch act.

> We genocided the native Americans

That's also bad. Two wrongs don't make a right.

> Our president wants to genocide brown people.

This discredits you quite a lot, since I've never heard even the most left-wing public figures insinuate such a wild unsubstantiated thing. If true, that would be deplorable also.

Whether what you're saying is true or false has no bearing on the truth value of what I said. You're just making unrelated angry hyperbolic claims that lack any nuance at all.

The same way that Eisenhower served under the Democrats FDR and Truman then was elected to the presidency as a Republican?

It's a job. With particular job duties. You do those duties regardless of who's in charge. It's just that under one administration those duties are oriented to a particular larger purpose, while under another administration they are oriented to another particular larger purpose. That still doesn't change the vast majority of jobs, and for those few it does, aren't most of them political appointments already?