Speech Limits on Court Agency Employees Rebuked by Judge

WASHINGTON (CN) – From posting a political view on Facebook to sporting a lawn sign for one’s preferred candidate, a federal judge found Wednesday that the agency tasked with supporting the U.S. court system went too far in trying to bolster public trust by stamping out these free-speech activities.

Calling the burden on the First Amendment here “as serious as they come,” U.S. District Judge Christopher Cooper said the new policy, though laudable “runs headlong into another vital constitutional principle: the right of citizens, including federal employees, to engage in our participatory democracy through electoral politics.”

The Administrative Office of the U.S. Courts instituted the policy in question earlier this year. While the AOC has always put some limits on partisan employee speech outside the workplace, the updates instituted in March took aim at a broader spectrum of activity, including making financial donations to candidates and attending political fundraisers.

AOC employees Lisa Guffey and Christine Smith brought a lawsuit to stop the changes in May, persuading Judge Cooper on Wednesday to issue an injunction.

The agency failed to sway Cooper by noting that the previous policy had not been updated for 20 years, and that the changes were intended to bring it in line with rules applying to other courthouse staff.

Cooper noted the appeal of that logic, but ultimately rejected it.

“Achieving unity for its own sake cannot justify extending an existing speech restriction to a new group of employees whose job functions and workplace location distinguish them from those already covered,” the 25-page ruling says.

What the AOC must show, according to the ruling, is that its policy change will mitigate harm resulting from partisan employee activities.

Cooper also rejected the AOC’s argument that the new rules serve to uphold public confidence in the judiciary.

“The interest in preserving public trust in the judiciary, no matter how potent, cannot be waved as a talisman to justify all restrictions on judicial employees,” the opinion says. “Deciding whether the government’s interest carries the day requires clarifying what exactly the government fears.”

Cooper said the AOC’s failed to answer that question, particularly since it conceded that its employees are not positioned to influence management of or decisions in individual court cases.

“So save for egregious malfeasance, an AO employee could not sway the outcome of a case if she tried,” the opinion says, using an alternate abbreviation for the agency. “And there is no factual basis – certainly the government has not offered any – for thinking that the partisan political views of AO employees (whatever they may be) reflect those of judges generally.” (Parentheses in original.)

Cooper noted that the AOC “struggled” to come up with a single example where an employee’s partisan activities caused a member of the public to question the integrity of the judiciary.

That said, Cooper found two of the new restrictions acceptable: a prohibition on organizing political rallies and transporting voters to vote for specific candidates.

In parsing out the distinction, Cooper said attending a partisan political rally “reflects personal preference,” while “organizing one requires recruiting others to the cause.”

“While it is entirely right for the AO Director to take measures to strengthen judicial independence and its appearance, those chosen in this instance must yield to the plaintiffs’ First Amendment rights,” the opinion says.

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