Posted: 5:07 am EDT
On August 17, we wrote about the State Department’s updated and enhanced rules for speaking, writing, teaching and media engagement covering all creatures big and small in Foggy Bottom, and the worldwide diplomatic universe (see State Dept Releases New 3 FAM 4170 aka: The “Stop The Next Peter Van Buren” Regulation).
The Daily Signal picked it up and got an official statement from deputy spox Mark Toner:
State Department Deputy Spokesperson Mark Toner says the reason for the revisions is actually “to underscore that the Department encourages employees to engage with the public on matters related to the nation’s foreign relations.”
“The revised policies and procedures are more protective of employee speech as they establish a higher bar for limiting employees’ writing or speaking in their personal capacity, while also recognizing changing technologies in communication, such as social media,” Toner said in a statement to Daily Signal.
Toner also said the revisions do not change the procedures employees must follow before testifying in court or before Congress but “streamline the review process and also remind employees about existing rules regarding the disclosure of classified and other protected information.”
Streamline-apalooza! Here’s the laugh out loud cry from our favorite Veronica Mars:
“It’s an absolute overreach,” Rep. Jason Chaffetz, chairman of the House Oversight and Government Reform Committee told the Daily Signal:
“They should be able to talk to the media, they should be able to speak to Congress,” the Utah Republican said. “They have an absolute and total right to interact with Congress. There are whistleblower protections. That’s not a balanced approach to current and former employees’ rights.”
No kidding! We imagine that the State Department would say no one is preventing anyone from speaking to the media or Congress, they just want to know what you’re going to say first. Before you say it. And hey, the agency will even help you clean it up, if needed.
When the ACLU defended Mr. Van Buren in 2012, it made the following argument:
The Supreme Court has long made clear that public employees are protected by the First Amendment when they engage in speech about matters of public concern. A public employee’s First Amendment rights can be overcome only if the employee’s interest in the speech is outweighed by the govemment’s interest, as employer, in the orderly operation of the public workplace and the efﬁcient delivery of public services by public employees. Pickering v. Bd. of Educ, 391 U.S. 563, 568 (1968). The government bears an even greater burden of justiﬁcation when it prospectively restricts employees’ expression through a generally applicable statute or regulation. United States v. National Treasury Employees Union, 513 U.S. 454, 468 (1995) (“NTEU”).
The Supreme Court has repeatedly held that public employees retain their First Amendment rights even when speaking about issues directly related to their employment, as long as they are speaking as private citizens. Garcetti
v. Ceballos, 547 U.S. 430, 421 (2006).
Further, the State Department’s pre-publication review policy, as applied to blog posts and articles, raises serious constitutional questions. Through its policy, the State Department is prospectively restricting the speech of Mr. Van Buren as well as all present and future State Department employees. Where, as here, the restriction limits speech before it occurs, the Supreme Court has made clear that the government’s burden is especially heightened. NTE U, 513 U.S. at 468. The State Department must show that the interests of potential audiences and a vast group of present and future employees are outweighed by that expression’s necessary impact on the actual operation of government. Id. Courts have also required careful tailoring of prospective restrictions to ensure they do not sweep too broadly and that they actually address the identiﬁed harm. Id. at 475. Given this heightened standard, it is highly unlikely that the State Department could sustain its burden of demonstrating that its policy is constitutional.
In 2012, the ACLU presumably, used the 2009 version of 3 FAM 4170. The updated version of 3 FAM 4170 issued July 27, 2015 is much tighter and has a much wider reach. We don’t know how one could argue that this enhanced policy could better sustain constitutional challenge. But then, perhaps, State has a stable of constitutional lawyers at a ready. Besides, those folks outside the building do not have legal standing to challenge these rules. So.
Oh, wait, perhaps, the State Department is also counting that no one will cross the fine line after Mr. Van Buren, and this policy functions, at its core, as a simple deterrent.