Did Trump Violate Free Speech with His EPA Gag Order? No.

Donald Trump signing his Dakota Access Pipeline executive order. (Getty)

Donald Trump caused a stir January 24 when he ordered that the Environmental Protection Agency immediately cease all media updates, including press releases, blog updates, and posts via the agency’s official social media channels. The decision caused quite a bit of controversy, and drew references to violations of free speech:

However, Trump’s orders are not a violation of free speech, according to attorney Ken White, who writes on First Amendment and criminal justice issues. “There’s no First Amendment right to use your federal employer’s platform to express yourself,” says White, “unless your employer generally throws it open for that purpose.  And agencies don’t have rights.” The EPA is a federal agency whose parent is the Executive Branch, headed by the President, and as such is bound to heed his commands regarding speech.

The order does not extend to the commentary of EPA employees via personal means of communication, who enjoy far more protections under the Constitution and relevant case law. The Supreme Court’s 1982 ruling in Connick v. Myers held that employees of government agencies at any level enjoy protection from adverse employment action when commenting on a matter of public concern rather than internal employment matters. Barring the release of any proprietary EPA information, EPA employees are free to communicate with the public.

The issue comes after several federal agency Twitter accounts seemingly defied the President’s positions and statements, including from the National Park Service, which received similar orders:

The issue also underscores tensions between the agency primarily charged with addressing climate change and a new Chief Executive’s longstanding skepticism on the matter.

White House Press Secretary Sean Spicer offered no further information but said the administration was “looking into it” and promising further updates as he received them.

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