Free Speech for Government Employees
A Thought Crime
Morris Davis was fired by the Library of Congress not because of his work performance but because he wrote that Wall Street Journal op-ed on his own time, using his own computer, as a private citizen, never mentioning his (unrelated) federal job. The government just did not like what he wrote. Perhaps his bosses were embarrassed by his words, or felt offended by them. Certainly, in the present atmosphere in Washington, they felt they had an open path to stopping their own employee from saying what he did, or at least for punishing him for doing so.
It’s not, of course, that federal employees don’t write and speak publicly. As long as they don’t step on toes, they do, in startling numbers, on matters of official concern, on hobbies, on subjects of all sorts, through what must be an untold number of blogs, Facebook pages, Tweets, op-eds and letters to the editor. The government picked Davis out for selective, vindictive prosecution.
More significantly, Davis was fired prospectively—not for poor attendance, or too much time idling at the water cooler but because his boss believed Davis’s writing showed that the quality of his judgment might make him an unsuitable employee at some future moment. The simple act of speaking out on a subject at odds with an official government position was the real grounds for his firing. That, and that alone, was enough for termination.
As any devoted fan of George Orwell, Ray Bradbury, or Philip K. Dick would know, Davis committed a thought crime.
As some readers may also know, I evidently did the same thing. Because of my book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, about my experiences as a State Department official in Iraq, and the articles, op-eds and blog posts I have written, I first had my security clearance suspended by the Department of State and then was suspended from my job there. That job had nothing to do with Iraq or any of the subjects I have written about. My performance reviews were good, and no one at State criticized me for my day-job work. Because we have been working under different human resources systems, Davis, as a civil servant on new-hire probation, could be fired directly. As a tenured Foreign Service Officer, I can’t, and so State has placed me on indefinite administrative leave status; that is, I’m without a job, pending action to terminate me formally through a more laborious process.
However, in removing me from my position, the document the State Department delivered to me darkly echoed what Davis’s boss at the Library of Congress said to him:
“The manner in which you have expressed yourself in some of your published material is inconsistent with the standards of behavior expected of the Foreign Service. Some of your actions also raise questions about your overall judgment. Both good judgment and the ability to represent the Foreign Service in a way that will make the Foreign Service attractive to candidates are key requirements.”
There follows a pattern of punishing federal employees for speaking out or whistle-blowing: look at Davis, or me, or Franz Gayl or Thomas Drake. In this way, a precedent is being set for an even deeper cloud of secrecy to surround the workings of government. From Washington, in other words, no news, other than good or officially approved news, is to emerge.
The government’s statements at Davis’s trial, now underway in Washington, DC, do indeed indicate that he was fired for the act of speaking out itself, as much as the content of what he said. The Justice Department lawyer representing the government said that Davis’s writings cast doubt on his discretion, judgment and ability to serve as a high-level official. (She also added that Davis’s language in the op-ed was “intemperate.”) One judge on the three-member bench seemed to support the point, saying, “It’s one thing to speak at a law school or association, but it’s quite a different thing to be in the Washington Post.” The case will likely end up at the Supreme Court.
Free Speech is for Iranians, not Government Employees
If Morris Davis loses his case, then a federal employee’s judgment and suitability may be termed insufficient for employment if he or she writes publicly in a way that offends or embarrasses the government. In other words, the very definition of good judgment, when it comes to freedom of speech, will then rest with the individual employer—that is, the US government.
Simply put, even if you as a federal employee follow your agency’s rules on publication, you can still be fired for what you write if your bosses don’t like it. If your speech offends them, then that’s bad judgment on your part and the First Amendment goes down the drain. Free speech is increasingly coming at a price in Washington: for federal employees, conscience could cost them their jobs.
In this sense, Morris Davis represents a chilling precedent. He raised his voice. If we’re not careful, the next Morris Davis may not. Federal employees are, at best, a skittish bunch, not known for their innovative, out-of-the-box thinking. Actions like those in the Davis case will only further deter any thoughts of speaking out, and will likely deter some good people from seeking federal employment.
More broadly, the Davis case threatens to give the government free rein in selecting speech by its employees it does not like and punishing it. It’s okay to blog about your fascination with knitting or to support official positions. If you happen to be Iranian or Chinese or Syrian, and not terribly fond of your government, and express yourself on the subject, the US government will support your right to do it 110 percent of the way. However, as a federal employee, blog about your negative opinions on US policies and you’ve got a problem. In fact, we have a problem as a country if freedom of speech only holds as long as it does not offend the US government.
Morris Davis’s problem is neither unique nor isolated. Clothilde Le Coz, Washington director of Reporters Without Borders, told me earlier this month, "Secrecy is taking over from free speech in the United States. While we naively thought the Obama administration would be more transparent than the previous one, it is actually the first to sue five people for being sources and speaking publicly." Scary, especially since this is no longer an issue of one rogue administration.
Government is different than private business. If you don’t like McDonald’s because of its policies, go to Burger King, or a soup kitchen or eat at home. You don’t get the choice of federal governments, and so the critical need for its employees to be able to speak informs the republic. We are the only ones who can tell you what is happening inside your government. It really is that important. Ask Morris Davis.