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

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?

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.

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.

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.

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

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.

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.

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".

> 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.

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).

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.

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

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

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?