The collision between the Trump fantasy world and the free speech rights of government employees

Donald Trump has only the sketchiest relationship with truth. He lies repeatedly and brazenly and in the face of easily available and widely known counter-evidence. This habit was no doubt enhanced by a life in business where he was surrounded by sycophants. One question of academic interest is whether he knows he is lying when he lies or whether he lives in a world where fantasy and reality blend seamlessly. In this age where any crackpot point of view can be found on the internet, TV, and radio, anyone can say “I have heard …” or “I have seen …” or “People say …” in support of their views, confirmation bias can be immensely powerful in that even the slightest indication of support for his views, however unfounded, is seen by him as conclusive.

But that kind of delusional thinking that can be merely annoying when done by people with no power becomes toxic in the hands of a president. The real question is how those people who work in the sprawling government bureaucracy and have to deal with reality to just do their work are going to react.

The problem for the narcissistic Trump is that he is reputedly an avid, almost obsessive, consumer of mass media, even of the establishment type that he so publicly despises, because he is eager to see what people are saying about him. While the establishment media has its own problems, they are largely based in the world of reality and it is not clear what the constant clash of reality with Trump’s imagined view of reality will do to him. He may well sink into a deeper isolated and insular paranoid world like that of Richard Nixon or even of a Howard Hughes.

One can see soon emerging a conflict with government officials who are trained to gather and analyze data based on reality, even though the political appointees at the top may distort those finding on ideological grounds. But this administration is clearly going well beyond political spin and distortion to trying to actually stifle their work. One way he will try to combat their work from being disseminated to the public is to try to prevent government officials from any contact with the media in order to prevent them from releasing information that runs counter to his fantasies. Trump has already tried to muzzle climate scientists by ordering them to shut down websites that discuss climate change.

As Amanda Marcotte writes, Trump is used to the private sector where he forced potential employees to sign Non-Disclosure Agreements (NDAs) that prevent them from ever even criticizing him. He has used it as a legal strategy when settling cases and even on his ex-wives as part of divorce settlements. But government employees do not give up all free speech rights.

Monday afternoon, before that story broke, I spoke on the phone with Orly Lobel, a law professor at the University of San Diego who has done significant research about employees’ speech right and the practice of using nondisclosure agreements and written the book “Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding.”

The first thing Lobel emphasized to me was that Trump cannot legally force federal employees to sign nondisclosure agreements. That said, the government does enjoy some rights to muzzle employees — but, she noted, strong legal limits exist on how much silence the executive branch can require. Government employees enjoy broader rights to speak out than Trump traditionally prefers when it comes to those who work with him.

“They’re civil servants and they’re bound by the rules of keeping confidential information and not exposing government secrets to the public, but that is all balanced by the right to speech,” Lobel explained.

Even though the Supreme Court found in 2006 that government employees can be barred from sharing work-related information with the general public, “all the justices agree there’s a violation of your First Amendment rights if it’s a matter of public concern and if you’re speaking externally” in public venues, Lobel noted.

Basically, the rule of thumb is this: A public employee is allowed to speak publicly or share information with the media, if that information is not considered a government secret or classified information.

There is a “legitimate interest of the public,” Lobel said, in knowing about “corruption or wrongdoing or impropriety” inside the government.

Of course, government career employees are usually not wealthy people and it is not easy to openly defy their bosses and reveal accurate information in the public interest even if they have the right to do so, since Trump is also clearly setting in motion the process of eliminating their protections so that they can be forced out at will. So it becomes likely that we will have more whistleblowers and that the protections for them have to be increased. That battle has already begun with the Office of Special Counsel, the office that is supposed to protect whistleblowers, issuing a reminder of what can and cannot be done to prevent officials from speaking.

The Office of Special Counsel, an agency that protects whistleblowers in the federal government, on Wednesday issued a reminder that any non-disclosure agreements or policies on employee communications must include language notifying federal employees of their whistleblower rights.

“Under the anti-gag provision, agencies cannot impose nondisclosure agreements and policies that fail to include required language that informs employees that their statutory right to blow the whistle supersedes the terms and conditions of the nondisclosure agreement or policy,” the OSC press release said.

The OSC reminder followed several reports that employees at agencies like the Environmental Protection Agency were told not to issue press releases or use official social media accounts. There is also speculation that President Donald Trump may require some administration employees to sign non-disclosure agreements, as he has required his employees to do so in the past.

The OSC also noted that whistleblower laws protect employees who blow the whistle “on any effort to ‘distort, misrepresent, suppress’ or otherwise censor any government ‘research, analysis, or technical information’ that the employee reasonably believes could, among other things, pose a substantial and significant threat to the public health or safety or constitute a violation of law, rule, or regulation.”

All those new WikiLeaks-style sites that were set up by various media organizations in the wake of Edward Snowden to receive anonymously documents that are leaked that cannot be traced to the source should be revamped and publicized once again.

As Cory Doctorow writes, already in the first week of the Trump administration, we are witnessing the opening salvos of a war between the fantasy world of Trump and the reality-based world of scientists, career government officials, and the media. We are going to see the testing of the limits of the First Amendment as we have never seen before.


  1. thewhollynone says

    Dr. Singham, I posted this to my Facebook page. Okay? And if the scientists march, I will march with you. Really, how long will it be before someone throws a net over this guy?

  2. sonofrojblake says

    A public employee is allowed to speak publicly or share information with the media, if that information is not […] classified

    There seems a simple solution to that for Trump: simply make all facts, stats and research classified. Is there a reason this wouldn’t work?

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