Media Contact

August 16, 2022

Washington, D.C. - Today, a federal appeals court held unconstitutional under the First Amendment nine restrictions prohibiting approximately 1,100 administrative employees of the federal judiciary from engaging in a range of core political speech and activity outside of work, including publicly expressing views on candidates for office, attending political events, joining a political party, and more. The ruling came in a lawsuit filed by the ACLU of the District of Columbia on behalf of two employees of the Administrative Office of the U.S. Courts (AO), which provides support services to the judicial branch, like assisting with information technology and overseeing federal-defender programs.

“This is a big victory for the First Amendment and for government employees,” said Scott Michelman, Legal Director of the ACLU-DC and lead counsel in the case. “The government tried to ban ordinary employees from political activities that are central to our democracy, like publicly expressing views on candidates for office. That’s exactly the type of overreach the First Amendment exists to correct.”

The case began in 2018, after the AO implemented a new code of conduct prohibiting all of its employees, even when off-duty, from engaging in these nine political activities: 1. Publicly expressing opinions about partisan candidates or political parties, including on social media; 2. Wearing or displaying partisan badges, signs, or buttons; 3. Contributing money to a party, candidate, or political action committee; 4. Attending partisan fundraisers; 5. Attending a partisan candidate’s campaign events; 6. Attending party conventions, rallies, and meetings; 7. Being a member of a partisan political organization; 8. Driving voters to the polls on behalf of a party or candidate; and 9. Organizing events for a partisan candidate. Because many partisan candidates are candidates for reelection to offices they currently hold, the ban on AOUSC employees’ speech regarding candidates encompassed, in some instances, speech about AOUSC employees’ own currently-serving elected officials.

The ACLU-D.C. sued, and a federal court enjoined the first seven restrictions but allowed the other two to go into effect. Both sides appealed, and today’s decision by the U.S. Court of Appeals for the D.C. Circuit held that all nine are unconstitutional.

The government argued that if employees engaged in these activities, they would undermine public confidence in the judiciary as a whole or prevent Congress or judges from trusting the work of the AO. The appeals court rejected these arguments, deeming them “too speculative to survive the scrutiny required for a regulation of political speech” and calling the government’s fears “novel, implausible, and unsubstantiated.” As the court explained, “the government cannot condition public employment on the complete surrender of a citizen’s First Amendment rights.”

“I am glad that the court has upheld my first amendment rights,” said Lisa Guffey, the lead plaintiff in today’s case, who helps oversee federal defender programs operating within the judicial branch. “I am proud both to serve the federal government and also to be an active participant in our democracy, and I am glad the court recognized there’s no conflict between the two.”

The court’s opinion specified that the relief it ordered—halting the nine challenged restrictions—could apply only to the two employees who are plaintiffs in the case, but it observed that “the AO is a government entity with an independent duty to uphold the Constitution” and therefore “[w]e trust that upon receipt of our judgment, it will reconsider the contested restrictions” as to the rest of its 1,100 employees.

The case is Guffey v. Mauskopf. More information is available here.