Gag clauses for California state workers, public employees might violate First Amendment rights

Employees at a California tax agency started to suspect something was up when a compliance officer emailed everyone a reminder not talk with the media one morning in March.

Later that day, CBS Sacramento aired a story on new “RIOT” buttons that had been installed in elevators in the California Department of Tax and Fee Administration building, alarming some employees. The story included interviews with a few workers outside the department’s building at 450 N Street, which has become notorious for maintenance problems.

“The general message of the policy is that when staff receives inquiries from reporters, they should refer them to their supervisor or manager as those inquiries are handled by CDTFA by what is now called our External Affairs Division,” said an email from Program and Compliance Bureau Chief James Dahlen.

Yet those types of blanket restrictions on government employees’ speech are unconstitutional, according to a recently published paper from the Florida-based Brechner Center for Freedom of Information.

“People don’t forfeit their constitutional rights, including the right of free expression, simply by accepting government employment,” the paper says, citing two Supreme Court decisions from 1967.

Such “gag” policies are nonetheless common, affecting public employees from local schools and police departments to state and federal agencies, according to the paper.

California state government is no exception. Many, while not all, state departments have policies instructing employees to refrain from talking to the media and to refer all questions to public information officers, even when the employees are experts on the topics they’re being asked about.

Those policies can be problematic, especially when employees are punished for talking with the media without permission, the paper states.

The Ninth Circuit Court of Appeals outlined a concern over that approach in a 2017 decision. The court ruled in favor of a state trooper who filed a lawsuit alleging he was improperly punished for publicly discussing the Nevada Highway Patrol’s K-9 program.

“Although it could be true that police departments would operate more efficiently absent inquiry into their practices by the public and the legislature, efficiency grounded in the avoidance of accountability is not, in a democracy, a supervening value,” the court wrote. “Avoiding accountability by reason of persuasive speech to other governmental officials and the public is not an interest that can justify curtailing officers’ speech as citizens on matters of public concern.”

What’s allowed

Courts have consistently ruled against blanket restrictions on public speech, but they have found specific restrictions permissible, according to the paper.

For example, agencies may forbid employees from representing their views as official positions of the agencies they work for, according to the paper.

And not all forms of speech are protected for public employees, according to the paper.

A starting point for the distinction in protected and unprotected speech is 1967’s Pickering v. Board of Education, according to the paper. Illinois school teacher Marvin Pickering lost his job after criticizing his school district’s spending priorities in a letter to the editor.

When Pickering’s case reached the Supreme Court, justices ruled his speech deserved protection “because it addressed matters of public concern,” according to the paper.

Public employee speech not addressing public concerns — such as personal grievances about working conditions — hasn’t received the same protection in the courts.

Additionally, the Supreme Court has said work products, such as assigned memos, aren’t eligible for the First Amendment protections afforded to the expressions of their opinions about their work or workplace. That opinion was issued in the court’s 2006 Garcetti v. Ceballos decision.

“The government faces a much more demanding burden to justify a blanket restraint on speaking to the press than to justify punishing one particular speaker whose speech undermines the agency’s effectiveness,” the paper states.

California departments

Some of the largest California government agencies with blanket restrictions on talking to the media are Caltrans, the Department of Motor Vehicles, the Department of Tax and Fee Administration, the Franchise Tax Board and the Employment Development Department.

“All media inquiries are to be channeled through the Office of Public Affairs,” the DMV’s policy reads.

“Employees who are contacted by the media, or wish to correct media inaccuracies or promote good news stories must first be cleared by (public information officers),” Caltrans’ policy reads.

“In the event a (Franchise Tax Board) employee is contacted by any member of the media including: reporters, free-lance journalists, bloggers, or any other type of media, please direct that persons to contact Public Affairs,” the FTB policy says.

Public information officers from several of the agencies said the policies ensure that reporters receive accurate and timely responses. Some of the agencies deal with sensitive personal information that needs to be protected, they said.

“Directing media inquiries to public affairs minimizes the risk of inadvertent disclosure of such personal details, therefore providing an extra layer of protection for taxpayers,” Franchise Tax Board spokesman Jason Montiel said in an email. “In addition, having public affairs as a central point of contact helps ensure prompt responses to media inquiries as well as consistent and accurate information.”

Senior CDTFA spokeswoman Stacie Spector said her staff is trained to quickly find accurate information to respond to reporters.

“If this responsibility were spread throughout the department, it would, we think, actually make it much harder for the media to get the most reliable information they are looking for, in a timely manner,” Spector said in an email.

The policy in effect at the California Department of Corrections and Rehabilitation is slightly less broad.

“Only an employee designated by the institution head shall inform the media regarding a facility incident or newsworthy event,” it states.

Other agencies, such as Cal Fire, encourage employees to be open to talking with the media.

“If you come upon a firefighter ... in the field, they’re instructed to talk to the task at hand,” Cal Fire spokesman Scott McLean said in an interview.

The department offers workshops for employees to understand what they should and shouldn’t discuss with reporters.

“It’s our theme in the class that you have a job to do, you the media, and we need you as much as you need us,” McLean said.

This story was originally published January 6, 2020 at 5:00 AM with the headline "Gag clauses for California state workers, public employees might violate First Amendment rights."