(Reuters) - U.S. District Judge Christopher Cooper of the District of Columbia ruled Wednesday (2020 WL 2065274) that the Administrative Office of the U.S. Courts cannot bar employees from making political contributions, attending campaign events, publicly supporting candidates and engaging in other political speech on their own time. The judge held that the Administrative Office can preclude employees from organizing campaign events and driving voters to the polls because those activities “evince particularly strong commitments to enlisting partisan support.” But otherwise, he said, employees’ bedrock First Amendment rights trump speculative concern that their political speech will taint perception of the judiciary’s impartiality.
A spokesman for the Administrative Office, which performs policy, administrative and legislative work on behalf of the federal court system, declined via email to comment on Judge Cooper’s ruling. Scott Michelman of the American Civil Liberties Union Foundation of the District of Columbia, who represented plaintiffs Lisa Guffey and Christine Smith, said Judge Cooper realized that the government’s justification for the restrictions was “smoke and mirrors.”
“This was a very thoughtful opinion, applying First Amendment principles with an eye toward the real world,” Michelman added.
Until 2017, most of the 1,100 employees of the Administrative Office faced no restrictions on political activities outside of work. But in 2017, AO director James Duff announced changes to the agency’s code of conduct that, he said, would align the rules for administrative office employees with the regulations governing most federal courthouse employees. (Judges and law clerks have different codes of conduct.) When Guffey and Smith sued in 2018 for an injunction to block enforcement of the new rules, the AO argued that the restrictions were necessary to assure public faith in the judiciary’s impartiality.
Judge Cooper mostly granted the injunction (with exceptions for the bar on organizing political events and driving voters to the polls) in a 2018 decision (330 F.Supp.3d 66). The judge acknowledged the government’s deep interest in the perception of an impartial judicial system. But he said that under the U.S. Supreme Court’s 1995 ruling in U.S. v. National Treasury Employees Union (115 S.Ct. 1003), the government has to show that restrictions on First Amendment rights are a necessary response to a realistic threat. Judge Cooper said that the Administrative Office had not offered reasonable hypotheticals for why political speech prohibited under the new rules would lead the public to lose faith in the federal judiciary’s impartiality.
In a summary judgment briefing, the Administrative Office offered two additional justifications for the new restrictions, arguing that federal judges might doubt the AO’s policies if they perceived its employees to be partisan and that employees’ political activities could sow mistrust of the AO in Congress and the executive branch. With the prevalence of social media, the AO said, it’s entirely possible that political operatives could attempt to exploit, say, campaign donations by AO employees for partisan purposes. The AO offered declarations by two former high-ranking Congressional aides who said the agency’s reputation for impartial policy decisions would be tarnished if its employees were perceived as political partisans. (The ACLU pointed out that the AO attained its upstanding reputation when there were no restrictions on employees’ political speech, arguing that the declarations from former congressional aides actually proved the employees’ case.)
Judge Cooper used different standards to evaluate the AO’s various arguments on summary judgment. As in his preliminary injunction ruling, he said that the administrative office had only to provide realistic hypotheticals to justify the restrictions as a necessary measure to assure public faith in the federal judiciary’s impartiality in deciding cases. But the scenarios it offered, of “nefarious actors” exploiting AO employees’ political activities to sow mistrust, fell short, the judge said.
“The hypothetical situations offered by the government—which vividly illustrate its legitimate concerns regarding judicial integrity in the adjudication of individual cases—do not establish a realistic link between the prohibited activities and the predicted harms,” he wrote. The AO posited a long chain of supposition, the judge said, in which a member of the public would observe an employee engaged in political speech, would recognize the employee as a member of the Administrative Office, would know that the AO works with federal judges - but would mistakenly believe that the administrative agency has a role in deciding particular cases. “The links in this chain,” the judge said, “are fatally weak.”
Judge Cooper applied more stringent scrutiny to the AO’s rationales for restricting employees’ speech to assure confidence from federal judges and politicians in Congress and the executive branch. Federal judges, he said, understand what the AO does and know that the political views of ordinary AO employees do not affect the agency’s policies or recommendations, let alone the outcome of any particular case. “Judges, more than anyone, recognize that political affiliation can, and must, be checked at the door when doing the business of the federal courts,” Judge Cooper wrote.
Politicians, the judge conceded, might be swayed by exploitive reports of AO employees engaging in political speech, though he agreed with the ACLU’s argument that Congress continues to regard the AO as impartial even though its employees have been free to express private political views for decades. But the AO cannot justify curtailing employees’ First Amendment rights because it fears employees’ speech would be twisted and exploited.
“If … members of Congress and their staffs would be likely to retaliate against the entire federal judiciary if they knew that an AO employee supported the opposite party, then the problem would lie with Congress (and indeed the country) not the AO,” Judge Cooper wrote. “The First Amendment freedoms of fair and dedicated professionals should not be sacrificed at the altar of partisan myopia.”
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