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The Trump administration has taken steps to curb federal agencies from disclosing information about science and environment issues, according to a Reuters report on Tuesday. Employees at the Environmental Protection Agency, the Interior Department, the Department of Agriculture and the Department of Health and Human Services have been instructed to limit independent communications with the public, reinforcing concerns that Trump, a climate change doubter, could seek to sideline scientific research as well as the career staffers at the agencies that conduct much of this research, Reuters said.

To find out whether the muzzled agency employees have a constitutional right to defy the Trump directives, I asked Heidi Kitrosser, a law professor at the University of Minnesota who specializes in the intersection of the U.S. constitution and federal government secrecy whether the First Amendment allows the government to bar employees from speaking in their official capacity.

The answer, in a word, is yes, although there are some loopholes, Kitrosser said.

In 2006, the U.S. Supreme Court considered an anti-retaliation case brought by Richard Ceballos, a longtime assistant district attorney in Los Angeles who claimed the D.A.s office denied him a promotion after he wrote a memo, spoke out to supervisors and even testified as a defense witness about inaccuracies in an affidavit investigators submitted to obtain a search warrant. The Supreme Court acknowledged in Garcetti v. Ceballosthat public employees dont surrender all of their constitutional rights when they enter public service, but it agreed with the L.A. District Attorneys office that Ceballoss memo about the troublesome affidavit was not protected by the First Amendment because the assistant D.A.s speech arose from his job.

We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline, Justice Anthony Kennedy wrote in the Garcetti opinion. Restricting speech that owes its existence to a public employees professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.

The Garcetti case would make it very tough for EPA or other agency officials to defy a presidential instruction not to speak publicly about the agencys work without risking their jobs. The Supreme Court said that in most cases, government agencies can tell employees what they may and may not say, Kitrosser told me.

In a dissent from the Garcetti majority, Justice David Souter said he hoped the courts ruling did not imperil First Amendment protection of academic freedom in public colleges and universities, pointing out that professors have an obligation to share the results of their research. Minnesota law prof Kitrosser said its possible that the Souter loophole for academics could apply as well to federal government researchers. That argument, she said, is supported by the Supreme Courts 2001 decision in Legal Services Corp. v. Velazquez, in which Justice Kennedy said the federal government cannot restrict federally-funded lawyers for indigent civil clients from challenging welfare laws.

Just as such a restriction was held to compromise the essential duty of a lawyer, Kitrosser said, a restriction barring scientists from sharing the results of their research might be considered a violation of the scientists First Amendment rights.

But thats a long-shot legal theory -- not much help right now to supposedly muzzled government scientists. Kitrosser said history may provide a more immediate response. President George W. Bush, as she has frequently written, tried to centralize the flow of information and particularly information about climate change from executive branch agencies. In 2006, the New York Times reported that a 23-year-old political appointee at NASA was attempting to restrict senior scientists from disclosing their research. After a public outcry that included a Congressional investigation, the space agency changed its policy.

Bad press and public pressure help, said Kitrosser. The main thing right now is screaming.

Every day seems to bring new troubles for Qualcomm, the chip maker accused last week by Apple and the Federal Trade Commission of abusing its monopoly on a key broadband processor used in cellphones and tablets. Wednesdays headache: an antitrust class action by consumers who bought devices containing the Qualcomm processors.

In class action litigation after the U.S. Supreme Courts holding last year in Spokeo v. Robins, there seems to a big difference between cases based on the theft of personal data and those claiming defendants improperly held on to confidential customer information.

The public interest group Citizens for Responsibility and Ethics in Washington, which sued President Donald Trump Monday for allegedly violating the Foreign and Domestic Emoluments Clauses of the U.S. Constitution, has dedicated more of its resources than it would like to investigating and explaining the new presidents extensive, far-flung business entanglements.

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Can the president control the speech of federal agencies? | Reuters - Reuters

As this Post article (Juliet Eilperin and Brady Dennis) notes,

Trump administration officials instructed employees at multiple agencies in recent days to cease communicating with the public through news releases, official social media accounts and correspondence, raising concerns that federal employees will be able to convey only information that supports the new presidents agenda.

A student asked me whether this violates the First Amendment, and the answer to that is no, for a simple reason: Official government publications arent a place where employees are entitled to speak the publications are the voice of the government, not of individual speakers, and the First Amendment doesnt stop higher-ups from dictating or restricting what viewpoints are expressed there. That clearly flows from the Supreme Courts decision in Garcetti v. Ceballos (2006); and while some argue that the decision is too broad, in allowing punishments for certain kind of government employee whistle-blowing, that decision is very firmly rooted when it comes to control over official government speech.

Now there might be statutes constraining some such presidential action (I dont know about that). Such action might not be within the presidents power when it comes to independent agencies (again, I cant speak to that). Such action may often be unwise. There are certainly political constraints on such action. And the First Amendment does in some measure constrain the government from restricting employees own speech, including on their own Twitter feeds, in op-eds, in scholarly articles and the like. (The rules there are complicated; see this post of mine for more on that, and Ken White (Popehat) also has a good summary.)

But the First Amendment doesnt give subordinates the right to choose what official government speech contains, over the objections of their superiors.

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No First Amendment problem with the president restricting what ... - Washington Post

There is no such a thing as a First Amendment in France. One reason is that libert de lesprit (freedom of thought and expression, as well as irreverence toward the powers that be) has been part of the French psyche, culture, and custom for too long.

It actually predates the Revolution of 1789: the Old Regime was deemed to be "an absolute monarchy limited by satiric songs."Under the French modern regimes in the 19th and 20th centuries, public intellectuals -- from Franois-Ren de Chateaubriand to Victor Hugo to Emile Zola to Jean-Paul Sartre -- enjoyed extensive influence and extensive, if not complete, immunity.

In 1898, when Zola published Jaccuse (I Accuse), a devastating indictment of the handling of the Dreyfus case by a French military court, he was sued for "defaming"the military judges and sentenced to one year in jail and a 3000 francs fine. He was, however, pardoned two years later by the president of the Republic, Emile Loubet.

Seventy years later, in 1968, when Interior Minister Raymond Marcellin considered suing Sartre for supporting a subversive Maoist newspaper, another president -- Charles de Gaulle -- tersely reminded him: "Marcellin, one does not send philosophers to jail."

However, recent developments may point to a completely different situation, and may turn a French First Amendment into a necessity after all.

Consider the cases of Pascal Bruckner and Georges Bensoussan.

Pascal Bruckner, 68, is one of Frances finest public intellectuals, the author of no fewer than twenty-eight books. He served as assistant or associate professor at Sciences Po (the famed Institute for Political Science in Paris) and at several American universities. A Catholic and the son of a Protestant pro-Nazi engineer, he was a Marxist sympathizer in the late 1960s.

By the mid-1970s, he had rejected both right-wing and left-wing extremism, along with suchNouveaux Philosophes(new philosophers) as Alain Finkielkraut, Bernard-Henri Levy, Christian Jambet, and Jean-Marie Benoist. This has remained his stand ever since then.

It turned him into an admirer of American democracy, a loyal -- if moderate -- supporter of Israel, and a critic of radical Islam: three major crimes according to French political correctness.

In 2015, shortly after the Bataclan massacre, an Islamist terrorattack in Paris that killed 130 people and wounded or maimed about 368, Bruckner remarked on a radio program that such "anti-racist"militant groups as Les Indivisibles (The Indivisibles)and Les Indignes de la Rpublique (The Republics Natives), known to show systematic partiality for non-Caucasians and Muslims whatever the issue, provided "ideological justification"for jihadism.

He was subsequently sued for defamation by both groups.

Even if Bruckner was cleared on January 17 by a Paris court, one wonders whether the defamation charge should have been considered in the first place, and whether it was not part of a larger attempt to harass and silence him. One reason why Bruckner may have been targeted is that he frequently wrote about anti-Semitism, including in a 2014 personal memoir, Un Bon Fils (A Good Son), in which he described his own fathers pathological hatred for Jews.

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Prosecutions Show France Needs a First Amendment to Discuss Islam - PJ Media (blog)

The Constitution can be heartbreaking sometimes.

The free speech protections enshrined in the First Amendment do not apply to the rogue National Park Service employees who have been tweeting out facts about climate change, courageously defying the Trump administrations stance on the environment.

Many people have rallied around these government workers, whose social media postings on climate science and research could very well land them in trouble, according to First Amendment experts.

Federal agencies, not individual employees, control messaging on their official accounts,explained Eugene Volokh, a law professor at UCLA who specializes on free-speech issues.

The First Amendment doesnt protect [these employees] right to speak on the employers Twitter feed in a way that the employer disapproves of, he said, pointing to an important Supreme Court case dealing with the speech of government workers.

Esha Bhandari, a staff attorney with the American Civil Liberties Unions Speech, Privacy, and Technology Project,more or less concurred with that assessment.

The new administration is entitled to use the official channels of government whether they be press briefings or websites or social media accounts to put out its own messages, and it can decide what federal employees are allowed to communicate when they are on the job, Bhandari wrote in a blog post.

This means that these brave employees couldnt raise the First Amendment defense if they get in trouble at their jobs for these tweets, although there may be other civil service protections available to them.

In addition, nothing prevents these workers from using their personal Twitter accounts to speak out about issues of public concern but even there, Bhandari cautions that First Amendment protections are strongest when they are speaking about issues that do not relate to their job duties.

There are also whistleblower protections for federal workers who would like to sound the alarm about unethical or otherwise illegal activity occurring at their agencies.

The federal government must foster an environment where employee disclosures are welcomed, Carolyn Lerner, the head of theU.S. Office of Special Counsel, said Wednesday in a statement.This makes our government work better and protects taxpayer dollars through disclosures of waste, fraud, and abuse.

But on the broader realm of freedom of speech, things are more complicated. Ken White, a longtime criminal defense attorney and First Amendment lawyer, wrote acheat sheet on these issues for people who would like to learn more, which may come handy in the Donald Trump era.

Those limitations aside,public outcry may ultimately play a role.

Heidi Kitrosser, a law professor at the University of Minnesota, told Reuters that the Bush administration caused an outcry in 2006 after The New York Timesreported that a public affairs appointee at NASA was essentially placing a gag order on a climate scientist who wanted to speak freely to the press. Things changed at the agency after a congressional investigation.

Bad press and public pressure help,Kitrosser said. The main thing right now is screaming.

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The First Amendment Doesn't Protect The Federal Workers Tweeting ... - Huffington Post

For all his talk of protecting religious freedom, one of the First Amendments five sacred rights, its taken President Donald Trump less than one week to start kicking the legs out from under each of the others.

The new administration has launched aggressive attacks on a free and fair press, freedom of speech, and the right of the citizenry to peaceably assemble and petition the government for a redress of grievances. One could even argue that hes weakened the free expression of religion (or lack thereof), particularly as it refers to contraception, LGBT rights, and any non-Christian faith practices.

Take the freedom of the press and the right to assembly. At least six journalists are being charged with felony rioting for covering Inauguration Day protests that turned violent, according to The New York Times. Such severe charges against journalists who were, by all accounts, reporting on a newsworthy public event, are highly unusual in modern American history. The formal charges against the journalists allege that demonstrators were carrying what the Times calls anarchist flags, but nowhere does the document accuse any individual journalist of criminal activity.

Couple this with Press Secretary Sean Spicers hostile introduction to the White House Press Corps, which itself suggests the incoming administration will have a chilling effect on the press, and it begins to feel like were just seeing the tip of the iceberg. As Mashable notes, the new administrations relationship with the press is already resembling that of Richard Nixon or, more ominously, Russian President Vladimir Putins systematic dismantling of the independent press. In fact, top White House adviser Steve Bannon last nighttold the Times that he views American news media as the opposition party, which should, in his words, keep its mouth shut.

Of course, Trumps gag order extends well beyond the White House Press Corps. Among a cascade of executive actions authored in his first few days, the new president ordered federal agencies to stop communicating with the press, freeze all current reports and studies, and, tellingly, tried to discourage them from using Twitter.

No one in the administration has directly commented on the irony that the chief executive, who prefers to issue his fiats in 140-character outbursts, feels it necessary to censor government agencies that dare to tweet facts about the resources they protect. Regardless, this kind of content-specific censure goes against longstanding American standards that (at least in theory) champion a vibrant and open socio-political national conversation.

Finally, draft versions of the presidents proposed immigration restrictionsuggest that all the nations involvedwill be Muslim-majoritynations, which makes is difficult to square with the principle ofreligious freedom. As The Atlantic explained:

If implemented, the Trump administrations order would suspend the entire U.S. Refugee Admissions Program for 120 days while security measures are reviewed and ban Syrian refugees from U.S. entry indefinitely. It would also temporarily block entry visas from seven countriesIraq, Syria, Iran, Sudan, Somalia, Yemen, and Libyafor 30 days as part of a broader security review of visa-admission programs, after which permanent visa bans could be enacted for those countries and others.

Take thistransparent attempt to privilege Judeo-Christian faith traditions in immigration policyand combine it with the so-called First Amendment Defense Act, which Trump has promised to sign, and VP Mike Pences long history of deployingreligious freedom as a weapon to restrict LGBT and reproductive rights, and the administration is, at best, boldly picking favorites when it comes to faith-informed morality. Theres no reason to suggest this early trend will reverse itself, and if one of Trumps preferred Supreme Court nominees is confirmed, the nation may be in for a religious reckoning, where not burdening sincerely held beliefs categorically outweighs protecting civil and human rights.

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The Religious Freedom President is Gutting the Rest of the 1st Amendment - Religion Dispatches