State Dept v. Peter Van Buren: ACLU Gets Into the Ring Over First Amendment Right

If you have been reading this blog for a while, you know that I’ve been following Peter Van Buren’s case for some time.  While I do not always agree with everything that Mr. Van Buren says and writes, I am offended by his selective treatment by the State Department that can only be described as retaliatory.

Mr. Van Buren, of course, is not the only recipient of such selective treatment in the State Department.  He’s just the loudest and the most vocal Exhibit A under the 21st Century Statecraft tab.  Other FSOs and family members have been similarly penalized for running afoul of  the department’s movable blogging and social media rules. One I know for sure, have been pushed into retirement, others suffer consequences in future assignments. Even non-blogging FSOs were threatened for the blogging activities of their spouses. For sure, very few threats come in written form but in a culture where corridor reputation is key to every assignment, no written memo is needed to screw up a future assignment in the Foreign Service.

On May 15, the American Civil Liberties Union (ACLU) got into the ring in Mr. Van Buren’s public fight with the State Department.  ACLU, the 92 year old institution told the State Department, the first agency created under our Constitution that “public employees don’t give up their First Amendment rights in exchange for a job with the government.”

The ACLU writes in its blog:

[T]he State Department has proposed firing Mr. Van Buren under the guise of a procedural rule, creating the strong appearance of unlawful retaliation. Government employees have the First Amendment right to speak as private citizens on matters of public concern. There’s no question that the subject of Mr. Van Buren’s book, blog posts, and news articles — the reconstruction effort in Iraq — is such a matter. And, government employees are often in the best position to know what ails the agencies that they work for.
[…]
The State Department is attempting to justify the firing by claiming that Mr. Van Buren failed to comply with the agency’s prepublication review policy. The State Department’s policy requires all employees to submit everything they write for prepublication review, regardless of whether they are writing in their official or personal capacity. This policy, especially as applied to blog posts and articles, raises serious constitutional questions. By forcing employees to submit all their writings for prepublication review — even articles and blog posts written on their own time — the State Department is effectively shutting its employees out of any meaningful participation in critical public debates. There is no justification for such an expansive prior restraint.

Continue reading, The First Amendment Applies to Foreign Service Officers, Too.

But writing a blog post is not enough.  The ACLU also wrote a letter to Patrick F. Kennedy, the Under Secretary for Management with courtesy copies to Linda Thomas-Greenfield, the Director General of the Foreign Service and Director of Human Resources; Jesselyn Radack & Kathleen McClellan, Government Accountability Project (who represents Mr. Van Buren in his Office of Special Counsel case) and Raeka Safai of the American Foreign Service Association.

Below is an excerpt from ACLU’s letter to Mr. Kennedy:

This proposed termination for Mr. Van Buren’s speech raises substantial constitutional questions and creates the appearance of impermissible retaliation for Mr. Van Buren’s criticism of the State Department. 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 government’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. Nat’l Treasury Employees Union, 513 U.S. 454, 468 (1995) (“NTEU”). By those standards, the State Department’s actions here appear to be unconstitutional.
[…]
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. 410, 421 (2006). In his book, blog posts, and articles, it is clear that Mr. Van Buren is speaking in his own voice and not on behalf of the State Department. Writing blog posts and articles from home, on his own time and on his personal computer, is a paradigmatic example of speech that public employees may legitimately engage in as private citizens. Pickering, 391 U.S. 563 (unconstitutional to discipline teacher for writing letter to the editor); Garcetti, 547 U.S. at 423 (citing op-eds as private citizen speech).

On prospective restrictions for all present and future diplomats, the ACLU writes:

[T]he 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. NTEU, 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.

There is no justification for such an expansive prior restraint on State Department  speech. The State Department’s policy affects all employees and is broadly written to include all “matters of official concern.” This encompasses a vast amount of speech – including Mr. Van Buren’s and that of numerous other State Department bloggers – that would in no way harm the “actual operation of the government.” The overbreadth of the State Department’s policy is abundantly clear when compared with the practice of the Department of Defense. Hundreds of active-duty soldiers, many with access to classified and sensitive information, post articles and maintain personal blogs without pre-clearance and without posing any harm to military operations.

Further, the State Department’s pre-publication requirement covers even more speech than necessary to serve the government’s stated interests –to protect classified information and to prevent views of employees from being improperly attributed to the government. 3 FAM 4172.1-1. As such, the policy is not carefully drawn to ensure that it does not unnecessary chill a vast amount of protected speech, nor is it tailored to address the identified harm. See Harman v. City of New York, 140 F.3d 111, 123 (2d Cir. 1998).

You can read the entire letter from the ACLU to Mr. Kennedy here.

The ACLU makes a very compelling argument and I think for the first time, the constitutionality of that broad umbrella of all “matters of official concern” take center stage. It’s a good thing to shine a light on that dark folder. Let’s see what happens.

On a related note, the American Foreign Service Association (AFSA) in February released its guidance for personal use of social media.   The union represented Mr. Van Buren in his grievance case within the State Department but has been largely silent in this very public fight.  Mr. Van Buren has now asked  AFSA if the union is willing to press State into a rational set of regulations on social media:

“We all know that many FSOs and their spouses/partners have been unofficially penalized for blogging, and pushed into going off line. At the same time, we also know there are many, many blogs out there by FSOs and others and that the number grows. Anyone think social media is going to be less a part of life in the next ten years?

I have taken an extreme position on these issues, and know that you have not always (or often?) agreed with what I wrote. That is in fact how it should be, because the issue at hand should not be about the content per se, but the right to write it.

I fully agree that State needs rules about social media; they currently really have none that are realistic and implementable and in fact are considered unconstitutional by America’s leading First Amendment group.

Would AFSA now be willing to make a public statement along these lines and use my case to press State into a rational set of regulations on social media?

So — I’m sitting here, after midnight, pondering — is AFSA up for this challenge? Guess, we’ll have to wait and see …

Domani Spero

 

 

AFSA Guidance on the Personal Use of Social Media

I just saw this guidance on the personal use of social media from the American Foreign Service Association (AFSA), the professional association of the United States Foreign Service. The organization has close to 16,000 dues-paying members and represents over 28,000 active and retired Foreign Service employees of the Department of State, Agency for International Development (AID), Foreign Agricultural Service (FAS), Foreign Commercial Service (FCS), and International Broadcasting Bureau (IBB). I believe this is the first guidance issued by AFSA on this subject. Republished below in full:

We are fortunate to live in a world where innovative technology allows us to communicate in new and wondrous ways.  Social media tools such as Facebook, Twitter, and blogs now allow us to communicate instantaneously with potentially thousands of “fans” and “followers.”  Just as the State Department and the other foreign affairs agencies have embraced these new communication tools, many of our members are using innovative ways to connect with audiences in their private and professional capacities.

AFSA supports the use of social media.  But any form of communication – via social media, telephone, e-mail, or just old-fashioned conversations – is governed by social norms and etiquette, and requires good judgment and common sense. Anyone who has ever said something they wish they hadn’t, tried to recall an e-mail sent in haste, or deleted a comment on Facebook understands the impact that the spoken and written word can have in our personal and professional lives. Electronic media – particularly anything broadcast over the internet – presents its own unique perils and challenges.  As the saying goes, “What happens on the internet, stays on the internet.”

AFSA is currently examining the evolving issue of the use of social media by Foreign Service employees.  In the meantime, we offer these words of advice to any of our members who are currently or planning to use social media, particularly blogs:

Read the Existing Regulations.  The current regulations regarding the use of social media can be found in 5 FAM 790 “Using Social Media (pdf).  Although we understand that some of these rules with their cross-references to other FAM cites are confusing, we strongly recommend that any AFSA member using social media – especially where the lines between professional, personal and private use may be blurred – read them and if you don’t understand something – ask.

Avoid Divulging Private and Confidential Information.  Here is where many people run afoul of the regulations.  Be sure not to divulge any information that includes confidential or personally identifiable information.  Examples of these include but are not limited to visa cases, information about other individuals, or classified information (for example, linking to WikiLeaks.)

Remember that you are a Foreign Service USG employee.  Even though you may have the required disclaimer on your blog, be aware that the public still may not differentiate between your official and private views.  You should be mindful of the weight of your expressed views as a U.S. government official, particularly when your blog uses the “hook” of your Foreign Service connections to attract readers.

Review Your Privacy Settings.  Make sure you are aware of the privacy settings of the social media platform you are using and how to adjust them.  Platforms such as Facebook often change these settings without informing users.  Periodic review of these settings is important, and we recommend having them set to the highest levels.  For blogs, you may even want to consider restricting access so that only your family, friends and colleagues have access.

Use Good Judgment.  We can’t emphasize this enough.  As we noted above, all forms of human communication require good judgment, tact, etc.  And what happens on the internet, stays on the internet.  When in doubt, leave it out.

Contact Us If You Have Problems.  If you are an AFSA member and are approached by management or Diplomatic Security regarding your use of social media, be sure to contact us so that we can assist you with any legal or other issues.

We hope the above information is useful.  We do want to hear from our members regarding this evolving issue.  If you have a concern or opinion regarding the use of social media, please let us know via www.afsa.org or call us at 202-338-4045.  For assistance with issues related to social media, please contact our labor management office at 202-647-8160 or e-mail AFSA’s lead attorney on the issue, Raeka Safai, at SafaiR@state.gov.

If you are a blogger in the FS community, I encourage you to take this opportunity to reach out to AFSA. Although “AFSA is currently examining the evolving issue of the use of social media by Foreign Service employees,” family members of Foreign Service employees are similarly affected.  AFSA should hear the voices of family members so they have a fuller view of this issue.  AFSA need to hear the stories and concerns of FSOs as well as family members so it can effectively craft a more comprehensive guidance in the future.

Domani Spero