The Office of the Special Counsel recently recommended that White House counselor Kellyanne Conway be fired for repeatedly violating the Hatch Act.
That recommendation prompted many people to Google what the Hatch Act is (it’s a law that bars federal employees from engaging in political activity in the course of their work) and President Trump to give an interview to Fox News where he stated that, “[I]t looks to me like they’re trying to take away her right of free speech, and that’s not just fair.”
The president tweeted support for a proposed constitutional amendment to outlaw burning the American flag — an act the Supreme Court has repeatedly held to be a protected form of political expression — thus ending his First Amendment advocacy streak.
But back to the Hatch Act for a moment.
It was passed in 1939 to prevent federal employees from engaging in partisan political activities, such as endorsing or opposing particular political candidates.
It’s grounded in a noble purpose: to protect federal employees from political coercion and ensure their advancement is based on merit and not political affiliation.
To that end, federal employees can’t engage in political activity while they’re on duty, in the workplace, or speaking in their official capacity.
The letter from the Office of the Special Counsel (OSC) pointed out that much of Conway’s recent conduct has fallen into that category, as she’s been making the rounds, “disparaging Democratic presidential candidates while speaking in her official capacity during television interviews and on social media.”
White House counsel Pat Cipollone responded with a letter stating, among other things, that applying the Hatch Act to political activity on social media “has a chilling effect on all federal employees whose fundamental First Amendment right to engage in political and public policy discussions should not be compromised based solely on OSC’s guidance.”
This isn’t the first time the OSC has faced that accusation. Ethics and transparency advocates said more or less the same thing last year, when the agency issued new guidelines that federal employees weighing in on President Trump’s prospects for impeachment or talking about “the Resistance” might constitute political activity.
National Treasury Employees Union President Tony Reardon’s exact words were, “This guidance is a broad reach that employees may find confusing. It could unnecessarily have a chilling effect on employees’ First Amendment free speech.”
The “chilling effect” is a concept that comes up a lot when we talk about the First Amendment.
Essentially, it means that when a law concerning expression is too vague or too broad, people won’t know exactly when their speech crosses the line and violates it.
So, in order to avoid punishment, they’ll avoid speaking at all — a major loss for free expression and healthy public debate.
Practically speaking, this isn’t really a concern when it comes to Kellyanne Conway specifically.
President Trump has explicitly stated he will not fire her (the OSC only has the authority to recommend that he do so). She has publicly scoffed at the Hatch Act charges, telling reporters, “Let me know when the jail sentence starts.” She continues to appear in public, making it abundantly clear that nothing will get her to chill.
Here’s hoping that the White House continues championing free speech rights for government employees — it’d be a nice change from prosecuting them for leaking information to the press and accusing them of treason.
Lata Nott is executive director of the First Amendment Center of the Freedom Forum Institute. Contact her via email at firstname.lastname@example.org, or follow her on Twitter at @LataNott.