Last week, the Commerce Department announced a new rule regulating communications with the press by its own scientists on any subject of “official interest.” There are few subjects of more “official interest” these days than climate change. One of the things that hindered the Administration’s reign of denial for the last six years was the frequency and vigor of agency staffs’ off-the-record corrections for the record every time some spokesflack belched another lie or misdirection. The new rule, set to take effect in May, is awash with rhetoric acknowledging the good of “broad and open dissemination of research results [and] open exchange of scientific ideas.” In substance, though, it forbids agency staff from communicating pretty much anything—even if prepared and delivered on one’s own time—where that communication hasn’t first been vetted up the chain-of-command.
Most important, according to PEER (Public Employees for Environmental Responsibility), is that any “fundamental research communication” must, “before the communication occurs,” be approved by the designated “head of the operating unit.” The directive states that approval may not be withheld “based on policy, budget, or management implications of the research,” but it doesn’t define those terms and it limits appeals to within the Department. Furthermore, staff must give the Department at least two weeks “advance notice” of any written, oral or audiovisual presentation of a “public communication” prepared on their own time if it “is a matter of official interest to the Department because it relates to Department programs, policies or operations.” The directive itself is here.
Now, if the communication occurs on one’s own time and is not within the scope of employment, it seems like protected speech. True, there are many justifications one could imagine for such a directive. But as the Court acknowledged last Term in Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), the government carries a real burden here. Id. at 1957 (“So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” (citing Connick v. Myers, 461 U.S. 138 (1983) (“Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government”).
Even supposing an off-duty “public communication” is arguably within the scope of employment, though, might Connick and other First Amendment protections of government employee speech still shield the employee? The Garcetti Court held that when public employees make “statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.” “Pursuant to” might be read very broadly. But the Court did limit legitimate “managerial discipline” by noting that “[e]xposing governmental inefficiency and misconduct is a matter of considerable significance.” Id. at 1960-61. You make the call.