Mediaboss Marketing

The Trump administration has taken steps to curb federal agencies from disclosing information about science and environment issues, according to a Reuters report on Tuesday. Employees at the Environmental Protection Agency, the Interior Department, the Department of Agriculture and the Department of Health and Human Services have been instructed to limit independent communications with the public, reinforcing concerns that Trump, a climate change doubter, could seek to sideline scientific research as well as the career staffers at the agencies that conduct much of this research, Reuters said.

To find out whether the muzzled agency employees have a constitutional right to defy the Trump directives, I asked Heidi Kitrosser, a law professor at the University of Minnesota who specializes in the intersection of the U.S. constitution and federal government secrecy whether the First Amendment allows the government to bar employees from speaking in their official capacity.

The answer, in a word, is yes, although there are some loopholes, Kitrosser said.

In 2006, the U.S. Supreme Court considered an anti-retaliation case brought by Richard Ceballos, a longtime assistant district attorney in Los Angeles who claimed the D.A.s office denied him a promotion after he wrote a memo, spoke out to supervisors and even testified as a defense witness about inaccuracies in an affidavit investigators submitted to obtain a search warrant. The Supreme Court acknowledged in Garcetti v. Ceballosthat public employees dont surrender all of their constitutional rights when they enter public service, but it agreed with the L.A. District Attorneys office that Ceballoss memo about the troublesome affidavit was not protected by the First Amendment because the assistant D.A.s speech arose from his job.

We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline, Justice Anthony Kennedy wrote in the Garcetti opinion. Restricting speech that owes its existence to a public employees professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.

The Garcetti case would make it very tough for EPA or other agency officials to defy a presidential instruction not to speak publicly about the agencys work without risking their jobs. The Supreme Court said that in most cases, government agencies can tell employees what they may and may not say, Kitrosser told me.

In a dissent from the Garcetti majority, Justice David Souter said he hoped the courts ruling did not imperil First Amendment protection of academic freedom in public colleges and universities, pointing out that professors have an obligation to share the results of their research. Minnesota law prof Kitrosser said its possible that the Souter loophole for academics could apply as well to federal government researchers. That argument, she said, is supported by the Supreme Courts 2001 decision in Legal Services Corp. v. Velazquez, in which Justice Kennedy said the federal government cannot restrict federally-funded lawyers for indigent civil clients from challenging welfare laws.

Just as such a restriction was held to compromise the essential duty of a lawyer, Kitrosser said, a restriction barring scientists from sharing the results of their research might be considered a violation of the scientists First Amendment rights.

But thats a long-shot legal theory -- not much help right now to supposedly muzzled government scientists. Kitrosser said history may provide a more immediate response. President George W. Bush, as she has frequently written, tried to centralize the flow of information and particularly information about climate change from executive branch agencies. In 2006, the New York Times reported that a 23-year-old political appointee at NASA was attempting to restrict senior scientists from disclosing their research. After a public outcry that included a Congressional investigation, the space agency changed its policy.

Bad press and public pressure help, said Kitrosser. The main thing right now is screaming.

Every day seems to bring new troubles for Qualcomm, the chip maker accused last week by Apple and the Federal Trade Commission of abusing its monopoly on a key broadband processor used in cellphones and tablets. Wednesdays headache: an antitrust class action by consumers who bought devices containing the Qualcomm processors.

In class action litigation after the U.S. Supreme Courts holding last year in Spokeo v. Robins, there seems to a big difference between cases based on the theft of personal data and those claiming defendants improperly held on to confidential customer information.

The public interest group Citizens for Responsibility and Ethics in Washington, which sued President Donald Trump Monday for allegedly violating the Foreign and Domestic Emoluments Clauses of the U.S. Constitution, has dedicated more of its resources than it would like to investigating and explaining the new presidents extensive, far-flung business entanglements.

More:
Can the president control the speech of federal agencies? | Reuters - Reuters