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No Impeachment or #Resistance Talk for Federal Employees

By Christopher Coble, Esq. on December 05, 2018 | Last updated on March 21, 2019

Walking the tightrope of free speech, political opinions, and office culture is a challenging balancing act for any employer. Now imagine you're the federal government. On the one hand, the Constitution's First Amendment protections apply directly to you, more so than private employers. On the other, how do you keep politics out of anything you do?

The goal is to at least provide the appearance that civil servants are politically neutral. So you can't have federal employees participating in political campaigns or attempting to influence elections. And you certainly can't have them talking about the possible impeachment of the president or chatting publicly about "the Resistance."

Political Speech and Acts

The Hatch Act was passed in 1939 and provides restrictions on the political activities of federal, state, and local government employees. The law has been revised a few times since, survived several First Amendment challenges, and prohibits everything from managing a political campaign to making unsolicited recommendations for federal job applicants. Occasionally, specific political circumstances require reminders from U.S. Office of Special Counsel on what is, and it not, allowed.

Such an update was emailed to federal employees last week, including prohibitions on:

  1. Strong criticism or praise of a presidential administration's policies and actions.
  2. Advocating for or against impeachment of a candidate for federal office.
  3. Activity related to "the Resistance" and/or "#Resist."

Violating those rules, or any other part of the Hatch Act could mean losing your job.

Hashtags and Asterisks

So how far do those restrictions go? "Merely discussing impeachment, without advocating for or against its use against such a candidate, is not political activity," according to the email. "For example, two employees may discuss whether reported conduct by the president warrants impeachment and express an opinion about whether the president should be impeached without engaging in political activity." But advocacy for or against impeachment, directed at disqualifying a candidate for office or maintaining their eligibility, including posters or bumper stickers calling for Trump's impeachment would be clear violations.

As for that hashtag? Federal employees could use the "resist" slogan as long as it was related to an issue rather than a political candidate, like #ResistHate and #ResistKavanaugh, according to the ABA, or "I must #resist the temptation to eat another donut from the break room," according to the email. But the hashtags "#resist" alone and "#resistTrump" are presumed Hatch Act violations.

The email has received the same First Amendment pushback as other Hatch Act enforcement, but as one law review article put it: "Unfortunately for those individuals who have chosen a career in the federal public service, the Court has found that Congress may place an asterisk beside their First Amendment rights."

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