Tuesday, March 21, 2023

U.S. Court Agency Struggles To Revive Bar On Employee Political Activities

U.S. Court Agency Struggles To Revive Bar On Employee Political Activities

A federal appeals court on Monday appeared unlikely to allow the judiciary’s administrative agency to reinstate rules barring its employees from attending campaign events, making contributions to candidates, or engaging in other off-duty political activities.

Two members of a three-judge U.S. Court of Appeals for the District of Columbia Circuit panel voiced concern about why the Administrative Office of the U.S. Courts needed to restrict its 1,100 employees’ speech, which one called a “bogus issue.”

Weili Shaw, a U.S. Justice Department lawyer defending the restrictions, said at Monday’s oral argument that they are needed to protect the judiciary from charges of bias.

“We have a state interest of the highest order in protecting the impartiality of the judicial branch,” he said. The government is seeking to overturn a judge’s decision finding they violated the employees’ free speech rights.

But U.S. Circuit Judge Harry Edwards questioned the need for the rules since the employees were already barred from pursuing political activities on the job. He said the presumption should be in favor of protecting their speech.

“If it’s outside the work context, my feeling is it’s not my business,” he said.

The Administrative Office, which performs administrative and policy-related functions for the judiciary but whose employees are not involved in handling specific cases, had imposed new restrictions in 2018 on partisan activities they could undertake.

Those restrictions included bans on donating to a candidate, displaying a campaign bumper sticker or yard sign, attending fundraisers, or posting about political candidates on social media.

The restrictions mirrored ones that have long been in place for judicial employees who work in federal courthouses, which go further in the case of judges’ law clerks by barring them from nonpartisan political activity.

But after two employees, Lisa Guffey and Christine Smith, sued in 2018, U.S. District Judge Christopher Cooper in Washington, D.C., in 2020 concluded the Administrative Office’s ban on First Amendment-protected activities was not justified.

Scott Michelman, their lawyer with the American Civil Liberties Union, on Monday, argued the office had failed to show any examples of where an employee’s partisan activities in their personal time had affected the judiciary’s reputation.

“We go down a very dangerous road when we allow so much speech to be restricted based on so little evidence,” he said.

U.S. Circuit Judge Karen LeCraft Henderson warned Michelman to just wait, saying “we have all seen how social media has just polluted this country.” She said the judiciary needed to be “apolitical.”

“I’ve always believed political activity of any kind is toxic to the entire judicial branch,” Henderson said.

But Henderson appeared to be in the minority on the three-judge panel in voicing support for the restrictions.

U.S. Circuit Judge Justin Walker questioned whether the office could bar employees from making statements about their religious beliefs or attending church.

Walker said judges have been “unfairly” accused of allowing religion to influence their decisions, citing Republican former President Donald Trump’s nomination of U.S. Supreme Court Justice Amy Coney Barrett, a Catholic.

Shaw said no, prompting Walker to ask: “Why is political speech less important than religious speech?”

The case is Guffey v. Smith, U.S. Court of Appeals for the District of Columbia Circuit, No. 20-5183.

For Lisa Guffey and Christine Smith: Scott Michelman of the American Civil Liberties Union

For the Administrative Office of the U.S. Courts: Weili Shaw of the U.S. Justice Department