In late August, two internal memos from the United States Postal Service (USPS) were leaked to Motherboard. The memos instruct workers not to speak to the press. However, these memos fail to inform workers of their First Amendment constitutional rights to speak to the media. Whistleblower advocates warn that these memos may have a chilling effect on federal whistleblowers at a time when the USPS is under increased public scrutiny.
“The USPS memo on media disclosures omitted some important facts. Federal employees, including postal workers, have First Amendment rights to speak to the news media and Congress, as long as they make it clear that they are not speaking as representatives of the Postal Service,” explained Stephen M. Kohn, a whistleblower attorney with Kohn, Kohn & Colapinto. “The right of federal employees to criticize their agencies, free from censorship and retaliation, was established in Sanjour v. EPA.
As the Court explained in that decision: ‘It is perhaps the most fundamental principle of First Amendment jurisprudence that the government may not regulate speech on the ground that it expresses a dissenting viewpoint.’ Although Postal workers have a right to speak to the press and Congress and blow the whistle on matters of public interest, before making a disclosure, employees should consult with an attorney familiar with federal employee or First Amendment law to ensure that they are fully protected from any retaliation.”
The two separate internal USPS memos are entitled “Guidelines for Handling Local Media Inquiries.” The memos are from two separate postal districts and contain identical language, apart from the names of individuals whom employees should contact if they receive a media request. The memos state that “it is imperative that one person speaks on behalf of the Postal Service to deliver an appropriate, accurate and consistent message to the media.” They instruct all postal workers to refer media inquiries to a supervisor. However, at no point do the memos inform employees of their constitutional right to speak to the media as private citizens.
Court precedents support federal employees’ right to speak to the press while acting outside of work and in their capacity as private citizens. In the 1968 landmark case, Pickering v. Board of Education, the U.S. Supreme Court held that public employees had a First Amendment constitutional right to attack the policies and priorities of their government-employer in the press. In 2006, the Supreme Court reaffirmed the Pickering ruling in Garcetti v. Ceballos. Justice Anthony Kennedy explained in that decision, “a citizen who works for the government is nonetheless a citizen.
The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens.” The First Amendment rights of federal employees were also clarified in the 1995 case Sanjour v. EPA. In this case, the D.C. Court of Appeals held that it is unconstitutional for government regulations to empower officials to restrict outside-employee speech based on the content or viewpoint of the speaker.
Read the memos: USPS Warns Employees Not to Speak to Press