Workers at the Florida Department of Environmental Protection have had to choose their words carefully since Rick Scott became governor in 2011. According to the Florida Center for Investigative Reporting, employees of the state agency most directly responsible for dealing with climate change are no longer allowed to say “climate change”—or “global warming” or even “sustainability.”
The governor’s office and DEP spokespeople deny the gag order exists, but a former agency attorney says he received more than a dozen complaints about employees being muzzled on climate change. DEP employee Bart Bibler has publicly claimed he was suspended for mentioning it and expressing opposition to the Keystone XL pipeline.
If the allegations are true, this wouldn’t be the first time a state has attempted to deal with environmental controversies by silencing employees. In 2013, an op-ed in the Bangor Daily News accused Maine’s wildlife commissioner of muzzling biologists who supported a ban on bear-baiting. Last year, two employees of the Pennsylvania Department of Health claimed they were told not to speak with residents who called about fracking.
Can states really tell employees what they can and can’t say? The issue taps into one of the most confusing and unsettled areas of First Amendment law: the free speech rights of public employees.
There are two basic strands in the case law. The first dates back to 1961, when Illinois teacher Marvin Pickering wrote a letter to the editor of a newspaper claiming that the local school board would squander a proposed tax hike on sports rather than putting it to good academic use. The board fired him. (Surprise, surprise.) Seven years later—the wheels of American justice turn slowly—the Supreme Court ruled that the First Amendment protected Pickering’s letter and the board had no right to fire him.
The underlying principle, known as the “unconstitutional conditions doctrine,” provides that the government cannot determine employment on the surrendering of your constitutional rights. The doctrine is not absolute, of course. The government need not tolerate employee expressions that are of limited public value and especially damaging to the functioning of a workplace. If, for example, a police officer produces pornographic movies of himself in his uniform, the state can fire him. (Yes, that really happened.) But Pickering v. Board of Education strongly tilted the playing field in favor of employees when they’re talking about matters of public concern.
All that changed in 2006. The city of Los Angeles allegedly fired employee Richard Ceballos for testifying in court that the sheriff had lied to obtain a search warrant. In one of the most controversial 5–4 decisions of the last decade—and there have been many—the Supreme Court ruled in favor of the city. Since Ceballos’ testimony related to his role as a state employee, wrote Justice Kennedy, the First Amendment did not protect him from termination. Had he been speaking as a private citizen, the state could not have fired him.
That case, Garcetti v. Ceballos, sets up an odd incentive: It encourages employees to make their complaints as public as possible—in other words, to behave like a citizen whistleblower—rather than first trying to solve the matter at work, where they have virtually no First Amendment protections.
“It was a terrible, unnecessary, devastatingly bad decision,” says Sheldon Nahmod, a professor at the Chicago-Kent College of Law who has blogged about the Garcetti case.
The Pickering and Garcetti cases establish a two-step test for First Amendment protection of public employee speech. First, the employee must prove he was speaking as a citizen, not in his role as a state employee (Garcetti). Second, he must show that his interest in free speech outweighs the state’s interest in maintaining an orderly workplace (Pickering).
Back to Florida and global warming. Under the current interpretation, the First Amendment probably does not protect Bart Bibler when he wanders into a meeting at the DEP and utters the verboten phrase “climate change.” (One can only imagine the gasps and fainting that must have ensued.) He was speaking as an employee at a meeting in the office. Under Garcetti, that more or less ends the inquiry, and the state is allowed to suspend him. Now that he has come out publicly and complained about his suspension, though, the First Amendment probably does protect him. So, the state can suspend Bibler for what he said at work, but it can’t suspend him for complaining about it to a newspaper. (Do you see how confusing this is?)
The bear-baiting case in Maine is the really interesting one, if you’re into nerdy legal stuff. The wildlife commissioner allegedly restricted staff biologists from talking to the media, nongovernmental organizations, and the public about a referendum that would have banned the use of traps, bait, and dogs in bear-hunting. (The referendum eventually failed.) If the biologists had sued, the court’s decision would have hinged on a variety of seemingly minute details: Did the biologists identify themselves as state employees in their public statements? Did they suggest in any way that the state supported their views? Did the state include public communications in the biologists’ list of job duties? It’s hard to know how this hypothetical case would come out.
“The majority of federal appeals courts would likely allow the Maine biologists to speak publicly on the bear issue,” says Scott Bauries, a law professor at the University of Kentucky. “But, in cases like this, the employee-citizen distinction breaks down.”
The real crime here (figuratively speaking) is that we have political leaders who view silencing their employees as a legitimate communications strategy. Climate change isn’t the Candyman—it’s coming whether you say its name or not.
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