As far as American presidents go, Donald Trump has quite a few quirks that make him, well, unique. But perhaps none come to mind as readily as his tendency to tweet — often, and sometimes to the disagreement or disparagement of people in his closest camps. Trump faces no repercussions for his social media presence, which might not be so surprising, given that he’s the president. What makes it surprising is the way other federal employees face punishment — and even risk losing their jobs — for doing the same thing.
This disparity recently came to light thanks to an email, sent by the U.S. Office of Special Counsel (OSC), reminding government employees that their social media actions are limited — both at work and even on their own time.
You might be wondering: Don’t federal employees have the same right to free speech as American citizens? As it turns out, not exactly.
There’s legal precedent for penalizing federal workers for expressing their personal opinions. A 2006 Supreme Court case, Garcetti v. Ceballos, found that government employees’ constitutional right to free speech is only protected when an individual is speaking as a private citizen, not as part of their official job duties. As the Newseum Institute explains, for some government employees, that label never really goes away; “public-facing” employees like the White House press secretary or a city councilman will always be connected with their office, no matter the medium through which they make a statement.
What’s more, if a government employee has made a potentially contentious post as a private citizen, the First Amendment will only protect them if they are speaking on a matter of “public concern.” First established in the Supreme Court case Pickering v. Board of Education and expanded to social media through further court decisions, this rule means that posts about topics like racial discrimination or corruption might be protected, but posting grievances about a federal office’s day-to-day incompetence might not.
One final regulation limits government employees under certain conditions, and it’s the one that federal employees are currently faced with. The OSC’s most recent email reminded federal employees that they are technically limited by the Hatch Act. This 1939 law was designed to prevent government employees from campaigning on behalf of, or against, a political candidate, and has since been interpreted to apply to social media activities. Last week, Trump officially announced his candidacy for the 2020 election, which means that the Hatch Act is already in effect for any government social media posts concerning the president or political parties.
However, there are no such laws, or court cases, regarding social media activity for the commander-in-chief.
These regulations mean that federal employees are held to a different standard than the president himself, noted in a press release by Jeff Ruch, the Executive Director of Public Employees for Environmental Responsibility (PEER).
“Federal employees who get into Twitter spats with Donald Trump face career risks that the Tweeter-in-Chief does not,” Ruch said. “Ironically, the goals of the Hatch Act to remove partisanship from federal service and base personnel solely on merit, seem farther away even as the Act extends into cyberspace. The ability of federal employees to candidly discuss the people’s business has never been more imperiled.”
Given some of the Trump administration’s other actions, government employees and private citizens alike are already worried that the government is exercising unfair control over social media. On the day of Trump’s inauguration, the National Park Service (NPS) Twitter account retweeted two tweets seemingly critical of the incoming president: one comparing the size of his inauguration crowd with Obama’s, and one noting that civil rights, climate change, and health care policies were no longer present on the White House website. The tweets were deleted by NPS, and in the aftermath, the White House ordered all Department of Interior agencies not to tweet until new policies were issued the following Monday. These gag orders — combined with others against science-oriented agencies — was seen as heavy-handed by some, and as plain-faced censorship by others.
Interestingly, members of Trump’s own team have already been reprimanded by OSC for media activity in violation of the Hatch Act. The latest to receive rebuke: White House aide Kellyanne Conway for reportedly expressing opinions about candidates in last year’s special election in Alabama. Yet, Conway hasn’t faced disciplinary action for her lapses (of which there have already been several). The only surefire way for federal employees to avoid the penalties, it seems, is to keep their mouths (or fingers) quiet. That is, unless they’re the most prominent federal employee of all. That, as Trump might have it, is a pretty bad deal.