After the Office of Special Counsel recommended President Donald Trump terminate White House counselor Kellyanne Conway for Hatch Act violations last week, he quickly came to her defense. In an interview with “Fox & Friends,” Trump said he wouldn’t fire her and that the office was trying to take away Conway’s right to free speech.
But does the First Amendment apply to the Hatch Act?
The Trump administration and the Hatch Act
The Hatch Act was signed into law in 1939 following allegations that Works Progress Administration employees gave an unfair advantage to Democrats during the prior year’s midterm elections. The law bars federal employees from engaging in political activities on the job. That includes speech geared to benefit certain candidates during an election.
It also applies to social media posts. Federal employees are free to donate to candidates for office, however, as long as they don’t solicit funds, bundle donations or participate in official campaign activities at work.
The Office of Special Counsel, which is a different agency than the one that investigated Trump for Russian interference with the 2016 election, is responsible for enforcing the Hatch Act and other laws related to civil service.
The Office of Special Counsel’s recommendation for Conway’s termination was due to comments she made that “disparaged” Democratic presidential candidates during TV interviews and on social media. Her comments included that former Vice President Joe Biden lacked vision and Sen. Elizabeth Warren (D-Massachusetts) spent “decades appropriating somebody else’s heritage and ethnicity.”
Conway was appointed to her position, so the Office of Special Counsel can’t discipline her, leaving it up to the president.
Last year, the Office of Special Counsel determined that six White House officials had violated the Hatch Act while using Twitter. Four additional Trump administration officials were reprimanded for Hatch Act violations.
Does the Hatch Act threaten federal employees’ freedom of speech?
Trump’s point that Hatch Act enforcement would take away Conway’s right to free speech doesn’t jibe with a big limitation for the First Amendment: It doesn’t apply to the workplace.
No one is guaranteed the ability to say whatever they want and keep their job. The government can’t curtail individuals’ speech, but workplace rules can and often do bar employees from saying certain things. Most workers sign policies with their employers that prevent them from speaking ill of the company or saying otherwise offensive things that would impact the company’s reputation.
An example from several years back is when James Damore, a software engineer for Google, was fired after writing a lengthy treatise blaming biological differences between men and women for low gender diversity in tech.
Federal jobs have requirements that other jobs don’t have, like the Hatch Act and a law barring federal employees from accepting gifts of more than $390 from foreign governments or international organizations.
Contact Mollie Bryant at 405-990-0988 or bryant@bigiftrue.org. Follow her on Facebook and Twitter.
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