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The Hatch Act, originally passed in 1939, substantially limits the political activity of most federal workers. The Supreme Court has ruled on more than one occasion that the Act is constitutional. Being constitutional does not necessarily make it the right thing to do.

Here are the basic restrictions that apply to most federal workers:

And here are the restrictions that apply tofurther restrictedemployees (those in intelligence or enforcement agencies, SES, ALJs and other highly paid employees):

While the intent of the Hatch Act provisions restricting federal workers may be sound, the result is, in effect, muzzling many federal workers and depriving them of their First Amendment rights.

Some of the restrictions as outlined Office of Special Counsel (OSC) guidance border on the absurd. Considerthis guidanceissued to a member or the Senior Executive Service whose wife was considering a run for Congress.

One question was, You first ask whether you can prepare food for fundraising events held at your home. The response? As a further restricted employee, you may not act in concert with a candidate for partisan political office. See 5 C.F.R. 734.402. The Hatch Act also prohibits further restricted employees from organizing, selling tickets to, promoting, or actively participating in a fundraising activity of a candidate for partisan political office. See 5 C.F.R. 734.410(b). Therefore, because you may not provide volunteer services to a candidate, you may not prepare food for, or otherwise help organize, any fundraising event. So he cannot make cookies for an event in his home. OSC also noted that there is no problem with his wife holding the event in their home, but he cannot make a welcoming speech. He is able to welcome them, however.

Does that do anything to protect our democracy? I think not. Does anyone assume this gentleman would not support his wifes candidacy? Does anyone think his direct reports or co-workers dont know that?

The Hatch Act restrictions serve to limit his right to speak and in the process reduce transparency. They also add confusion about what can and cannot be done. Many federal workers disciplined for Hatch Act violations had no intent to violate the law.

A far better approach is to retain limits on federal workers running for partisan office and absolute prohibitions on federal workers taking official action based on political views. A hiring manager makes a hiring decision based on politics? S/he should be fired. A federal employee awards contracts based on politics? S/he should be fired. A federal executive bakes cookies for his wifes fundraiser in their home? Who cares?

The way the Hatch Act is working now does nothing to protect our democracy, nor does it do anything to ensure electoral integrity. It prevents many employees from speaking out about the politicians whose decisions affect them, such as employees who are furloughed due to a lapse in appropriations. It drives political activity for many employees underground, and does nothing to limit the political activity of senior political appointees.

When Obama Administration Housing and Urban Development Secretary Julian Castro violated the Act in April 2016, nothing happened. The OSCissued a finding that he had, in fact, violated the Hatch Act, and that was it.

When Kellyanne Conway violated the Hatch Act at least twice, OSCissued a letterto President Donald Trump saying, If Ms. Conway were any other federal employee, her multiple violations of the law would almost certainly result in her removal from her federal position by the Merit Systems Protection Board.

In both of these cases, highly ranking political appointees violated the Hatch Act and got away with it. Both spoke in their official capacity in favor of the president they served in a manner that clearly violated the law.

OSCs letter to President Donald Trump was spot on any career employee who committed the same offense would be fired. One of the glaring weaknesses of the Hatch Act is that it is toothless with respect to an Administration in power. President Obama could ignore Julian Castros violation and President Trump can ignore Kellyanne Conways violation.

In 1973 the Supreme Court upheld the constitutionality of the Hatch Act. In his dissent, Justice William O. Douglas strongly disagreed with the decision. Justice Douglas said:

We deal here with a First Amendment right to speak, to propose, to publish, to petition Government, to assemble. Time and place are obvious limitations. Thus no one could object if employees were barred from using office time to engage in outside activities whether political or otherwise. But it is of no concern of Government what an employee does in his spare time, whether religion, recreation, social work, or politics is his hobby unless what he does impairs efficiency or other facets of the merits of his job. Some things, some activities do affect or may be thought to affect the employees job performance. But his political creed, like his religion, is irrelevant. In the areas of speech, like religion, it is of no concern what the employee says in private to his wife or to the public in Constitution Hall. If Government employment were only a privilege, then all sorts of conditions might be attached. But it is now settled that Government employment may not be denied or penalized on a basis that infringes [the employees] constitutionally protected interests-especially, his interest in freedom of speech.If Government, as the majority stated inMitchell,may not condition public employment on the basis that the employee will not take any active part in missionary work, it is difficult to see why it may condition employment on the basis that the employee not take an active part in political campaigns. For speech, assembly, and petition are as deeply embedded in the First Amendment as proselytizing a religious cause.Free discussion of governmental affairs is basic in our constitutional system.

I believe Justice Douglas was right, particularly when he said, In the areas of speech, like religion, it is of no concern what the employee says in private to his wife or to the public in Constitution Hall.

What we have is a law that restricts speech of federal workers, but in practice does not restrict the speech of highly visible senior political appointees. It limits transparency by driving political activity underground, where it is less likely to be known to anyone.

I prefer to see transparency, and free exercise of the First Amendment rights of everyone, whether s/he works for the federal government or for Burger King. But at least we can take comfort in knowing that senior executives will not be baking cookies for their spouses political campaigns.

2020 Jeff Neal. All rights reserved. This article may not be reproduced without express written consent from Jeff Neal.

Tags: Hatch Act

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Amend the Hatch Act and Restore Federal Workers' First Amendment Rights - FedSmith.com

In most of the country, the kind of reporting I did in Narragansett no longer exists. Original, on-the-ground reporting the kind of reporting built on a deep understanding of people, places, and issues . . . the kind of reporting that requires time, resources, and the steadfast support of journalistic institutions (and sometimes their lawyers ) . . . the kind of reporting that provides the common facts that bind communities together and the oversight to hold leaders accountable. That kind of reporting is disappearing as the news industry continues its long, heartbreaking collapse.

Youve all felt the impact of that collapse. Youve felt it inside newsrooms, as friends and colleagues lose jobs they loved. Youve felt it in your hands, in ever-thinning local papers. And youve felt it in your communities, which are steadily more disconnected and divided.

We all know the two main factors behind this collapse one connected to how publishers fund news and one connected to how people find it. The advertising-based business model that supported American newsrooms buckled, causing the rapid loss of more than half the journalism jobs in the country and leaving news organizations struggling to pay for original reporting in the public interest. Meanwhile, the tech platforms became the most powerful distributors of news and information in human history, straining the direct relationship between journalist and reader that is essential for maintaining trust and loyalty. As a result, readers are increasingly unsure of what news is and where it comes from, making it easier for bad actors to unleash a flood of misinformation that has corrupted public understanding.

This is the moment when Im supposed to pivot and say that things are looking up. The truth is, theyre getting worse. Thats because theres another existential threat to journalism today, and far too few of us are talking about it.

Were losing popular support for the free press in this country. Over the past few years, weve witnessed the most sustained attack on the legitimacy of journalism in our history. Its an attack with catchphrases plucked from the mouths of tyrants and dictators. Fake news. Enemies of the people. Traitors. And a growing portion of the country believes these dangerous, misleading accusations.

Trust in independent news is evaporating and cleaving. A majority of Republicans now think the news media is better characterized as the enemy of the people than as an important part of democracy. More than 80 percent would rather get their news directly from President Trump than from the media. And there is evidence that skepticism of journalism is expanding across the political spectrum. A majority of Americans, regardless of party, do not trust the media to report the news fully, accurately, and fairly. And, perhaps as a result, nearly a third believe the government should be able to shut down news organizations.

With the news industry already struggling, this erosion of popular support for the press poses a threat not only to journalists and journalism but also to the very notion of truth and the health of our democracy. Weve already seen influential individuals, companies, and even nations exploit the trust vacuum to serve their own interests. Its the powerful, not the people, who benefit from a weakened press.

One of the lessons of the last few years is that our countrys institutions and norms are more fragile than we had assumed. And while law and precedent are valuable shields, public support for the principles of free expression and a free press is what gives them their enduring power. Look at Turkey or Hungary or India to see how quickly things can change when a society stops fighting for its democratic institutions.

So this is our task, all of us in this room. We must convince people that the free press is worth fighting for.

Its not enough to talk airily about holding power to account. We cant just assert the importance of bearing witness. It is time to stop talking about the First Amendment as an abstraction. Instead, we have to make powerful, practical arguments rooted in the lives of people and communities.

Heres a start. The free press lets you know how your tax dollars are spent. The free press makes sure that your kids health isnt jeopardized by contaminated water. The free press makes sure that the hospital you visit isnt spreading antibiotic-resistant germs.

The free press makes sure that the planes you fly in, the pharmacies you rely on, the banks that safeguard your savings are worthy of your trust. The free press shows how climate change may threaten your home and, if the worst happens, why your insurer may not be there to help.

The free press ensures you are protected by a justice system that jails the guilty and frees the innocent. The free press helps you make an informed decision about who to support for county clerk and who to support for president.

In a country with a free press, a new and deadly virus is promptly acknowledged and addressed, not hidden by the government until it becomes an international pandemic. No democratic country with a free press has ever suffered from a famine.

I think we can all agree that the press isnt perfect. We make mistakes, sometimes big ones. And when we do, we own up to them, and we strive to do better. But the imperfections of journalism make it no less essential.

At a moment when support for the press is fracturing along ideological lines, we must remind people why enshrining it in the First Amendment was one of the few areas of true consensus among the nations founders and why it remained so through our history. If youre a conservative, Id remind you that the free press protects against government corruption and overreach, provides businesses and entrepreneurs with the reliable information that fuels economic growth, and helps spread democracy around the world. If youre a liberal, Id remind you that the free press provides the scrutiny that keeps corporate power in check, interrogates the true impact of American interventions abroad, and makes sure that everyone, especially the little guy, has a voice.

A detailed, compelling accounting of the value of the free press is an essential message to share. But weve been delinquent messengers, taking far too long even to recognize that the message needs to be delivered.

Of course, as we make the popular case for the First Amendment, we have to keep fighting to fortify its legal framework. Across Democratic and Republican administrations, legal efforts have attempted to weaken safeguards for journalists and their sources. Activists, many politically motivated, are increasingly seeking to punish outlets for publishing unflattering information. These trends threaten decades of hard-won legal precedent. So we need to keep filing FOIA requests, battling libel lawsuits, pushing for whistle-blower protections, and doing all we can to defend the publics right to know.

To keep the First Amendment strong, we need to not only defend it in court but also convince our friends and neighbors why it matters to them on a personal level. They may not get a newspaper delivered to their doorstep, but the stakes of this struggle already reach inside their home.

If weve learned anything from the experience of the last few years and from the struggles of our colleagues reporting in repressive nations around the world its that we cannot take the free press for granted. And nothing is more perilous to a free society than when the public loses its reliable sources of information.

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How to save journalism - The Boston Globe

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Posted: Feb 11, 2020 12:25 AM

The opinions expressed by columnists are their own and do not necessarily represent the views of Townhall.com.

Editor's Note: This piece was written by Matthew Larosiere.

The federal government knows it cant prevent you from posting gun designs online. Its known this since at least 2018, when the Department of State offered to settle a case with Defense Distributed (DefDist), which it had previously ordered not to share gun files on the internet. This back-and-forth has made headlines periodically for years. The feds know the First Amendment protects all manner of designs, including 3D-printable files. For once, the federal government wants to stop an abuse of our rights. So why havent they? The answer lies with a group of state politicians, who at the end of January launched a push to force the feds to keep a policy that never really existed, and that nobody wants. This is ludicrous and must stop.

For some quick background, this whole controversy dates back to 2013, when DefDist was hosting a range of files online, including 3D models of its famous Liberator pistol, one of the first nearly entirely 3D-printed firearms. The Obama Administration had the Department of State order the files taken down. DefDist challenged this on various Constitutional grounds, most importantly the First Amendment. The Department of States tactic was to stretch its interpretation of a Cold-War era arms trafficking law, the International Traffic in Arms Regulations ("ITAR"), and assert that posting simple designs online was the equivalent of exporting significant military equipment to foreign countries.

The policy was basically a ban on posting any weapons-related designs online. Given the broad protections recognized by the First Amendment, this is obviously unconstitutional. Federal courts havelong recognized that computer code is First Amendment protected expression, as well as recipes for all manner of things, including items that would be illegal to make, like bombs and drugs. It stands to reason that posting a 3D model of a gun, even if it might be useful in making one, has more in common with sculpture than the conduct ITAR is aimed at preventinglike shipping rocket launchers to Libya.

As the lawsuit dragged on, the Department of State realized its position was incompatible with the First Amendment. So, itsought to settle. An agreement was reached, and it seemed all was well. That is, until some politicians threw atotal fit. They sued the federal government, asserting that the feds couldnt settle the case, because they wanted the feds to respect the tortured interpretation of law the feds had just completely made up. Or something. Long story short, as the headlines and press releases will tell you clear as crystal, this was just a matter of politics. State politicians invoked the g word and fought desperately to push toward prohibition.

State sought to rid itself of the problem altogether bytransferring the export of small arms and relevant technical data to the Department of Commerce. This doesnt change the underlying law at all, it just takes the matter out of States hands. Commerce was pretty forthright that it had no interest in violating the First Amendment, at least not to the extent State had previously done. This struck ire among the panicked anti-gun side, whoclaimed it was the Trump Administration trying to spread US gun violence beyond borders.

This latest move has been a group of state attorneys general, led by Washington State AG Bob Ferguson, to prevent State from performing this hand-off. In justifying this move, Ferguson points to horrifying 3D-printed gun crime, citing asingle instance from 2017, where a man was arrested for test-firing a gun in the forest.

Contrary to what these state attorneys general will tell you, this isnt about safety. Its not about the gun industry either, as Im not sure the industry is tremendously concerned with posting their designs online for unlimited distribution. This is about controlling individuals, and about limiting the protection of the First Amendment.

If the First Amendment only recognized the right to engage in polite conversation, it wouldnt be much of a right. Its not limited to the printing press, either. The First Amendment protects all manner of expression, from poetry, to architecture, to computer code, to recipe. No matter its shape, a 3D model is a digital sculpture crafted by a modern artist. Dont be fooled by attempts to classify this power grab as in the interest of your safety, or anything but for the sake of power itself. Bob Ferguson and his friends arent out for your best interests. Theyre out to force the feds to take your rights.

Matthew Larosiere is the Director of Legal Policy for Firearms Policy Coalition and a Senior Contributor toYoung Voices. He can be found on Twitter@MattLaAtLaw

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State Politicians are Fighting to Force the Federal Government Violate the First Amendment - Townhall

The Defense Department on Monday unveiled a $705.4 billion budget request that includes a proposal to slash funding for Stars and Stripes, the editorially independent newspaper that covers military matters around the world.

Elaine McCusker, the Pentagons acting comptroller, said at a press conference that the Pentagon had arrived at the decision following an expansive review that sought to move funding fromnonmilitary applications. She said that the department "essentially decided coming into the modern age that newspaper is probably not the best way we communicate any longer, according to reports.

It remains unclear how much the Pentagon intends to cut from the news outlet's annual budget.

Stars and Stripes publisherMax Lederer said that the Pentagon informed him early Monday morning about their intention to eliminate funding for operating and maintenance funds." The newspaper said that thecuts would amount to 35 percent of its annual expenses.

Sales, subscriptions and advertising account for a majority of Stars and Stripes' annual budget. However, the newspaper, which was first published by Union soldiers during the Civil War, said that itrelies on a subsidy from the Pentagon for reporting overseas.

The Pentagon did not immediately respond to a request for comment from The Hill.

"I and the Stripes leadership have not had an opportunity to study and plan for this change.We are now beginning that discussion and evaluating options, including ways to continue operations in some form," Lederer said in an email to staff, according to Stars and Stripes.

He added that the budget hit woulddefinitely" impact the news outlet's coverage capabilities.

The company's ombudsman,Ernie Gates, defended that reporting in a tweet criticizing the Pentagon's rationale for the proposal.

"Stars and Stripes' mission is not to communicate the [Department of Defense] or command message, but to be an independent, First Amendment publication that serves the troops -- especially deployed troops," Gates tweeted, taking special exception to McCusker's view that the Pentagon has other ways to "communicate."

Thanks for spreading the word. Stars and Stripes' mission is not to communicate the DoD or command message, but to be an independent, First Amendment publication that serves the troops -- especially deployed troops. So her 'we communicate' misses the mission.

In 2019, the newspaper distributed 7 million copies of its U.S. weekly edition and accumulated an audience of18.8 million unique visitors, according to CNN.

Barbar Starr, CNN's Pentagon correspondent, noted on Twitter that the Stars and Stripes print edition can be a valuable resource forservice members based in areas where they "cannot use their phones because of concerns their locations will be tracked."

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Pentagon proposes slashing funding to independent Stars and Stripes newspaper | TheHill - The Hill

Its release was canceled last September following right-wing media outcry, criticism over the violence it depicted in the aftermath of two mass shootings, and some tweets from President Trump. But now, it seems, The Hunt is back.

The satirical social thriller, as Universal Pictures characterized the film in a statement last fall, has a new trailer and a release date: March 13, or Friday the 13th, as the trailer proclaims. The latest marketing leans all the way into the controversy: The most talked-about movie of the year is one nobodys seen yet! the text proclaims. (Technically its the most talked-about movie of last year, but time is a construct.)

The footage in the trailer doesnt avoid the political underpinnings that people claimed would be present in the film, and its dialogue seems bent on evoking both ends of the political spectrum; its a political movie, but not an obviously partisan one. Early on, the premise appears to be that liberal elites hunt regular people for sport. Soon, buzzwords start popping up. Dont First Amendment me! one character says. Im playing an Arab refugee, but I identify as white, another character says later on. I think thats problematic, in some way.

But the trailers grander aim seems to be skewering the reactions the movie elicited in September, maybe more than advertising the movie itself. It wasnt real, a character played by Hilary Swank insists, which could be taken as a statement about the characters hunting one another, but also about the idea that a movie would simply present liberal elites hunting red-staters without irony or a twist. As if to underline that statement, later, in voiceover, we hear, We were joking!

And to anyone who follows entertainment news whos thinking about The Hunt in good faith, it was always clear that the elites-hunting-regular-people setup would ultimately involve some sort of upending reveal. The film was co-written by the famously twisty (and unusually nuanced) Damon Lindelof, whos still best known for Lost but whose most recent project, HBOs Watchmen, steered far away from easy political stereotyping.

And yet, as the trailer swipes sideways at the reactionaries, it also hints that something more is going on in the story than its currently willing to disclose. At one point, Hilary Swank sneers at Betty Gilpin, one of the regular people. You actually believed we were hunting human beings for sport, Swank says.

But ... you are, Gilpin responds. And Swank merely smiles.

So whats actually going on?

Its always a bad idea to judge a film by its trailer. But Universal screened The Hunt for a few writers before the new trailer dropped, and judging by comments theyve made Scott Mendelson wrote at Forbes that its a harmless exploitation action-comedy its a relatively decent representation of the film. The trailer sells The Hunt as an irreverent, somewhat campy horror-thriller, the kind of movie were used to seeing from its studio Blumhouse Productions, which also produced Get Out, Happy Death Day, and Ma, among others. I havent seen The Hunt yet, but Ive heard through the grapevine that it more or less tries to play to both sides of the political divide.

Yet the trailer is also trying to sell The Hunt as a dare to moviegoers, using the movies bad press and delayed release to attract audiences not so much on the merits of its story as on the idea that it will make somebody mad if you go see The Hunt. Who will get mad? Its hard to say. Maybe the right-wing media pundits and the president, who said they were upset about a movie they claimed would inspire violence against conservatives, ordinary people in the American heartland. Or maybe the people who will get mad are smug liberals, who were upset about the films release being pulled, or who will be surprised to see the tables turned on them. Or maybe critics will get mad, if they end up not liking the film.

But who cares if youre owning the libs or owning Laura Ingraham? In 2020, the national mood seems to be that whats really important is somebody gets owned, and that its not you.

And in that kind of climate, The Hunts style of marketing seems inevitable in it borrows tactics from partisan product-peddling and political fundraising. One could argue that Joker benefited from some of the same sentiment, with people going to see it not only because they wanted to see a movie about a popular comic book character but also because doing so was some kind of a statement. The John Travolta-starring Gotti issued a similar challenge in 2018 by darkly warning that critics dont want you to see it and the question is why?? (The answer is it sucks, but by all means, knock yourself out.) Christian movies have used similar marketing tactics for years, telling potential viewers that seeing their movie would send a message to Hollywood.

Of course, nobody is going to get owned if you go see The Hunt. Youll be giving money to Universal Pictures, and the studio will have a good opening weekend. Its Hollywood, ultimately, that will win.

But its a smart move on Universals part to capitalize on a months-old controversy to get you to pony up to see the film. The right-wing pundits and Trump tweets just amounted to free advertising for the film, which many people now have actually heard of and might go see. The cancellation of The Hunts release was never going to be permanent. Through protesting the film, its would-be detractors turned it into a potential cultural phenomenon a headline rather than a footnote.

Which The Hunts marketers know full well. Near the end of the new trailer, Swank smirks slightly. You wanted it to be real, she says. So, you decided it was.

The Hunt opens in theaters on March 13.

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The Hunt movie trailer dares you to own the libs or the right wing - Vox.com