The nation’s largest union of federal workers filed a lawsuit against the United States to protect employees’ First Amendment rights to criticize President Donald Trump and other political candidates.
Filed Tuesday, the lawsuit by the American Federation of Government Employees and AFGE Local 2578 is in response to guidance issued by the Office of Special Counsel last year that restricts federal employees from advocating for the impeachment of the president or a political candidate or using terms on social media such as “#theResistance or “#resist.”
In the November 2018 three-page guidance, it says participating in “strong criticism or praise” of a presidential administration’s policies or actions, or of the candidates themselves, could be in violation of the Hatch Act, which prevents federal employees from engaging in partisan political activity.
AFGE National President J. David Cox, Sr., said his organization is suing the United States to protect its members against “political retribution in the workplace.”
“OSC’s vague, over-broad guidance creates an opening for mangers and political appointees to go after career civil servants for politically motivated reasons,” he said in a statement. “In fact, the guidance is so broad, an employee could even be guilty of violations if they voice support for the president’s policies.”
The guidance is eroding institutional norms and protections for employees, he said.
According to the guidance issued last year, there are no “magic words” federal employees need to avoid while on duty, so in order not to fall in violation of the Hatch Act, they must avoid statements concerning the success or failure of any policy or candidate.
It said that the terms “#resistance” and “#resist” used on social media weren’t terms that would have violated the Hatch Act before Trump was running for re-election, but “now that President Trump is a candidate for re-election, we must presume that the use or display of ‘#resistance,’ ‘#resist’ and derivations thereof is political activity.”
The complaint said that the OSC’s interpretation fo the Hatch Act “unconstitutionally chills protected speech by federal employees on matters of public concern.”
Austin Evers, executive director of American Oversight, a non-partisan watchdog representing AFGE in the case, said government employees have the right to state whether they believe the president has committed a crime or speak up when they see fraud or abuse being committed.
“By equating conscientious objections grounded in the Constitution with partisan political activity, the OSC’s guidance has achieved a result it was created to avoid — it makes public service political and undermines the guardrails of good government,” he said.”
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