Carolyn Weaver v. United States Information Agency, Joseph Duffey, Director, Usia, the Voice of America, Richard Carlson, Director, Voa, United States Department of State, Warren Christopher, Secretary of State
Docket: 94-5406
Court: Court of Appeals for the D.C. Circuit; July 9, 1996; Federal Appellate Court
Employees of the State Department, USIA, and AID must submit all materials related to 'official concern' for review before publication, a requirement defined broadly to encompass any content that could impact U.S. foreign relations. Carolyn Weaver, a part-time VOA employee, published an article in 1988 criticizing VOA without this prepublication review. The article was recognized by both Weaver and USIA as containing material of 'official concern.' Following the article's publication, she received an oral admonishment for her failure to comply with the review requirement. Weaver subsequently filed a lawsuit asserting First Amendment violations and seeking declaratory and injunctive relief, including challenges to the admonishment and requests under the Freedom of Information Act (FOIA).
The district court ruled in favor of the government, granting summary judgment on Weaver's claims, stating that the review requirement did not infringe on her free speech rights. On appeal, the court addressed whether Weaver's failure to exhaust administrative remedies regarding the admonishment affected jurisdiction. It concluded that it did for Counts II and III, affirming their dismissal without assessing their merits. However, Count I, which challenges the review procedure itself on First Amendment grounds, was deemed independent of the admonishment issue and did not present an exhaustion problem. Ultimately, the court found that the prepublication review requirement, interpreted narrowly, does not violate the First Amendment.
Non-judicial remedies for adverse personnel decisions in government employment arise from the Civil Service Reform Act (CSRA) of 1978 and collective bargaining agreements that provide grievance rights. In the case involving Weaver, the CSRA's direct remedies are applicable, as the collective bargaining agreement specifically excludes 'admonishments' from grievance rights. The CSRA addresses remedies for 'prohibited personnel practices,' which violate merit system principles, such as treating employees with respect for their privacy and constitutional rights. An admonishment is classified as a 'personnel action' under the CSRA, meaning it can be a 'prohibited personnel practice' if it infringes on constitutional rights, as interpreted by the Merit Systems Protection Board (MSPB). The MSPB now acknowledges both oral and written admonishments as personnel actions. If Weaver's admonishment is deemed unconstitutional, it qualifies as a prohibited personnel practice. However, since the admonishment is not a severe action allowing appeal to the MSPB, Weaver's remedy under the CSRA would be to file a complaint with the Office of Special Counsel (OSC). If the OSC finds reasonable grounds for the complaint, it must inform the agency and MSPB, and if the agency does not rectify the issue, the OSC may pursue corrective action with the MSPB. The OSC has a 240-day timeframe to act on such allegations, subject to extensions agreed upon by the complainant.
The CSRA allows the Office of Special Counsel (OSC) discretion regarding corrective action, but employees like Weaver have a right to federal court review of constitutional claims after exhausting administrative remedies. The requirement to exhaust remedies is a jurisdictional prerequisite, as established in various case law. Weaver's failure to challenge her oral admonishment with the OSC means she did not satisfy this requirement, resulting in the dismissal of Counts II and III of her complaint due to lack of jurisdiction. The exhaustion requirement also applies to constitutional claims if they arise from the same facts as CSRA claims and if the CSRA remedy could effectively address the constitutional violation. Weaver's constitutional claim is closely linked to her CSRA claim, making it subject to the same exhaustion requirement. Although Weaver argues that CSRA remedies are ineffective and that only a court can issue an injunction against the prepublication review requirement, the standards for an effective remedy do not necessitate a guarantee of immediate injunctive relief. Concerns about delays and OSC discretion do not exempt her claims from the exhaustion requirement, as these are typical of administrative processes. Ultimately, the circuit allows for judicial review after administrative remedies have been exhausted.
Weaver is permitted to pursue her non-CSRA claim for declaratory and injunctive relief without exhausting her administrative remedies related to her oral admonishment. Unlike the scenario in Steadman, her complaint for declaratory and injunctive relief is independent of the admonishment and closely mirrors her original complaint filed prior to the admonishment. Dismissing her amended complaint solely on exhaustion grounds would allow her to refile her complaint without reference to the admonishment, as supported by precedents like United States v. Nat'l Treasury Employees Union and Sanjour v. EPA, which affirm the district court's jurisdiction over cases framed as pre-enforcement challenges to regulations affecting employee speech. The court sees no justification for preventing Weaver from pursuing her constitutional claim, which is ripe and does not face exhaustion issues, just because she has faced a personnel action. Consequently, the dismissal of Counts II and III on exhaustion grounds is affirmed, and the court will consider the merits of Count I.
The prepublication review regulation 3 FAM 628.2 mandates that all materials related to an employee’s agency responsibilities or U.S. foreign policies must be submitted for agency clearance prior to publication. This regulation aims to replace the employee's judgment with the agency's institutional judgment regarding the accuracy and implications of the material. The regulation includes two commands: employees must submit their materials for clearance before publication, and they cannot publish any material of official concern until it is cleared. Weaver's refusal to submit her material for prepublication review constitutes a violation of this requirement.
The government contends that the regulation allows for employee review of material without permitting punitive actions against those who publish material approved through this process. According to the government, the requirement in paragraph 'b' means that employees must refrain from publishing material of official concern until the review is complete. However, the government does not clarify how paragraph 'c's conditions for withholding clearance align with this interpretation. The two can be reconciled by viewing paragraph 'c' as creating an implied safe harbor for approved publications. If the regulation were interpreted to allow punishment for publishing material deemed disapproved under criteria such as inaccuracy or adverse effects on foreign relations, it could conflict with constitutional protections, as established in Pickering v. Bd. of Educ. The hypothetical situation suggests that penalizing non-sensitive employees for expressing views inconsistent with foreign policy raises significant concerns about free speech and potential overreach in enforcement. The advance approval requirement could lead to delays and suppress expression deemed harmless post hoc. This situation emphasizes the need for a construction of the regulation that avoids constitutional doubts, aligning with the principle that statutes should be interpreted to prevent potential unconstitutionality, while ensuring that the interpretation remains plausible.
Section 628.2 mandates that material must be submitted for clearance but does not explicitly prohibit the publication of unapproved material. The regulation's criteria are vague and potentially contradictory, with paragraph 'b' focusing on the accuracy of agency-related information and paragraph 'c' addressing consistency with foreign policy. Attempting to reconcile these paragraphs reveals further ambiguities, particularly regarding the meanings of 'cleared' and 'clearance.' The government's interpretation distinguishes these terms, asserting that 'cleared' refers to completion of the review process, whereas 'clearance' involves additional substantive conditions. However, typically, identical terms within a statute should have consistent meanings, as established in case law (e.g., Atlantic Cleaners and Dewsnup). The ambiguity regarding the government's authority to punish the publication of disapproved materials complicates the interpretation of 628.2. Additionally, the requirement for review does not equate to the agency exercising its judgment over employee decisions as intended in paragraph 'b.' Despite these issues, viewing 628.2 as a procedural constraint appears practical, as the review process is not lengthy, and the agency likely avoids placing employees in violation of rules when material does not compromise legitimate interests.
An agency can constitutionally discipline employees for disruptive behavior without providing advance criteria, based on its inherent authority to maintain functional order, as established in Pickering. The government's current interpretation allows for penalizing speech that exceeds Pickering protections, and this procedural interpretation must be consistently applied unless a new interpretation is formally announced. There is no requirement for agencies such as the State Department, USIA, and AID to adhere to an interpretation presented solely in litigation, as they can modify their interpretations without prior notice. However, until a new interpretation is issued, the one put forth by counsel will be binding across all defendants involved. The prior VOA Directive does not represent an authoritative agency view, as it only applies internally and does not bind other agencies. The record reflects a lack of documented instances where VOA employees resisted agency requests, suggesting a lack of enforcement or application issues concerning the regulation in question.
Regulation 628.2 may induce in terrorem effects, causing employees to alter their behavior due to fear of punishment, yet it aligns with agency counsel's interpretation. The record indicates one application of 628.2, which supports the government's stance. Weaver's written admonishment for publishing without proper clearance under 628.2(b) does not cite substantive violations, raising doubts about the agency's view on her analysis regarding Rod Stewart songs. The interpretation of 628.2 adopted here avoids broader readings that could infringe on free speech, countering a dissenting opinion that claims this limits employee rights and chills free speech. The dissent's concern about employees misunderstanding their First Amendment rights persists regardless of any ruling on the regulation's constitutionality. The Supreme Court's canon promoting interpretations that avoid constitutional issues was applied here, consistent with prior cases on employees' rights. Following the adoption of the government’s interpretation, the analysis of the First Amendment claim will proceed. Restraints on government employee speech related to public concern will be evaluated through a balancing test, weighing the government’s interest in maintaining service efficiency against the public's interest in free speech.
Restraints on employee speech through general statutes or regulations must be reasonably necessary to maintain public service efficiency, as established in NTEU. The application of the Pickering balancing test may differ when prior restraints, such as pre-publication reviews, are involved. Cases addressing such speech prohibitions, like Snepp v. United States and Zook v. Brown, have primarily utilized the Pickering framework. In Snepp, the Supreme Court upheld a CIA regulation requiring pre-approval for publishing material, emphasizing the agency's right to impose reasonable speech restrictions to protect government interests. Similarly, in Zook, the court rejected the argument that prior approval for endorsements constituted unconstitutional prior restraint, instead affirming the application of Pickering and upholding the requirement.
Conversely, Brown v. Glines introduced an intermediate scrutiny test for Air Force regulations mandating prior approval for circulating petitions, finding these restrictions necessary to protect substantial government interests. The decision in McGehee v. Casey combined Pickering analysis with elements from Brown, highlighting the importance of employee status in First Amendment considerations. Additionally, Alderman v. Philadelphia Hous. Auth. struck down a temporary ban on employee speech, applying both Pickering and a compelling proof standard from non-employment cases to assess the necessity of the restriction for vital government interests.
Brown acknowledged the government's unique authority as an employer, particularly regarding employee speech restrictions necessary for effective governance. The Court distinguished its ruling from Greer v. Spock, asserting that the government can impose reasonable speech limitations on its employees. It suggested that while Air Force regulations could withstand scrutiny under the O'Brien test, an alternative analysis using the Pickering balance was also appropriate, considering the context of employment and the voluntary acceptance of certain burdens for job benefits.
The regulation, 3 FAM 628.2, was deemed constitutional, requiring employees only to undergo prepublication review without outright prohibitions on speech. The dissent's interpretation, which claimed total government control over employees' speech, was not aligned with the majority's understanding. The primary inconvenience posed by the regulation was the delay associated with the review process, which was not alleged to be excessively lengthy.
Weaver's concerns about informal pressures to alter content were noted but countered by the idea that employees would benefit from knowing the government's stance in advance. The risk of stricter review standards compared to post-publication penalties was seen as minimal, suggesting that the regulation's deterrent effects on speech were less severe than other restrictions previously upheld. The dissent's argument that the review process could alert authorities to potentially offensive content was addressed but not accepted as a significant harm.
Advance alerts are deemed necessary for the effective functioning of the regulation, particularly regarding the punishment of employees for publications on official matters. Agencies typically have multiple means to discover employee publications, especially those they find objectionable. There is a suggestion that a reviewing official with a negative bias may influence the likelihood of punishment based on the review process, although any increase in this likelihood is expected to be modest. The review process is described as brief and preliminary, minimizing the risk of prejudice in any final decision.
The government asserts that prepublication review serves several interests, primarily enhancing efficiency in public duties and preventing unauthorized disclosures of classified information. The Supreme Court has recognized the government’s compelling interest in protecting classified information. Even employees without direct access to classified materials may inadvertently encounter such information, necessitating review. The government’s rationale includes preventing statements that could insult foreign governments or confuse them about U.S. foreign policy, thus safeguarding international relations. This underscores that the regulation does not imply a substantive veto power but rather provides an early warning system to mitigate potential diplomatic issues. The document emphasizes that concerns about vague and speculative damage to foreign interests cannot justify restrictions on citizens' freedoms.
Employees' job-related speech may be restricted in ways that would be unconstitutional for the general public, particularly in the context of national security and foreign policy interests. The balance of interests between government efficiency and foreign policy is not as disparate as some dissenting opinions suggest. The regulation in question, 628.2, is deemed "reasonably necessary" to protect public service efficiency, especially concerning classified information, where advance review is critical to prevent unauthorized dissemination.
While the review process for prepublication may introduce some delay, it does not appear excessively prolonged, and employees engaged in foreign policy roles do not have an overriding interest in immediate publication of their statements. The review duration may vary based on the need for consultations, but evidence indicates that significant delays have not been common.
Although 628.2 lacks a specific time limit for the review process—an aspect typically viewed unfavorably in other contexts—courts have applied less stringent standards for government employment scenarios. There is no established constitutional requirement for a preset deadline in prior review processes related to employment. Furthermore, applying 628.2 to all agency employees, including those without direct access to sensitive information, is justified due to the potential risk of accidental information leaks. The review process serves a vital role in safeguarding against unintended disclosures that could arise even from seemingly innocuous sources.
The validity of the government's prepublication review scheme for employee publications is affirmed, stating it restricts no more speech than necessary to serve governmental interests, as established in precedent cases like Pickering and NTEU. The dismissal of Counts II and III of Carolyn Weaver's complaint is upheld on exhaustion grounds, while Count I is dismissed on the merits. Dissenting, Circuit Judge Wald criticizes the majority's interpretation of the regulation, arguing that it contradicts its explicit language requiring agency approval prior to publication. Wald contends that the majority's reading is overly favorable to the government and lacks support from the employees' understanding of the regulation, which they interpreted as mandating approval. Furthermore, she asserts that even if the majority's interpretation were accepted, the regulation would still infringe on First Amendment rights, as any burden on employee speech must be justified by concrete governmental interests, which Wald finds lacking in this case. The dissent highlights that the government has only provided vague, speculative justifications for the regulation's impact on foreign relations, failing to meet the necessary legal standard.
The VOA has not sufficiently demonstrated that the alleged harms from its regulations are substantial, as they do not affect its operational mission as an employer. The regulation in question restricts free speech by mandating prepublication review of all employee-written articles on topics of "official concern," which leads to a chilling effect on expression and could result in sanctions for non-compliance. The primary legal question revolves around whether the FAM regulation allows the government to ban the publication of certain materials and impose penalties on employees for defying such bans, or if it merely permits the agency to offer feedback on publications. The majority opinion interprets the regulation narrowly, suggesting it allows only for advice rather than punitive action for publication against agency objections, thereby avoiding potential constitutional issues. However, this interpretation is contested as it diverges from the regulation's text and the agency's historical understanding prior to litigation. The dissent emphasizes that while avoiding constitutional conflicts is ideal, it cannot justify an interpretation that misrepresents the regulation's clear intent. The dissent critiques the majority's approach as an unreasonable stretch of the regulation's language that fails to align with its intended meaning and purpose.
All materials related to an employee's agency responsibilities or current U.S. foreign policies must be submitted for clearance before publication. Employees are prohibited from publishing any material of official concern until it has been cleared, which allows the agency to ensure the accuracy and appropriateness of the information. Clearance will only be granted after the removal of any classified information or content deemed inaccurate or potentially harmful to U.S. foreign relations. Failure to obtain prior clearance for publishing such material constitutes a violation of agency regulations, leading to potential disciplinary action.
The majority interpretation suggests that these provisions are unclear, allowing for the possibility of publishing material even if it contains objectionable content, which contradicts the explicit regulatory requirements. The dissent emphasizes that the terms "cleared" and "clearance" should have consistent meanings throughout the regulation, indicating that publication is strictly prohibited until all objectionable content is deleted. The dissent critiques the majority's interpretation as inconsistent with established judicial principles regarding statutory language, arguing that identical terms in legal texts should carry the same meaning.
The Supreme Court's decision in Atlantic Cleaners outlines three specific scenarios where the same-word same-meaning presumption does not apply: when the subject matter differs, the conditions vary, or the scope of legislative power is broader in one instance than another. In the case at hand, none of these scenarios are present; both subsections (b) and (c) address the same prepublication clearance requirement under identical conditions and agency powers. The term "clearance" is used consistently within the regulation, contrasting with situations in other statutes where terms may have varied meanings across different sections. The Voice of America (VOA) had previously issued a directive in 1986 clarifying that employees must obtain advance approval for any publication related to official concerns, which aligns with the plain meaning of "clearance" as approval. The VOA did not indicate any ambiguity in its regulations prior to this litigation, and its internal directive directly contradicts the interpretation now presented by the agency in this case. This highlights a significant inconsistency in the VOA's stance, as it previously maintained a clear requirement for approval before publication.
The VOA previously confirmed that its directive, signed by Director Richard Carlson, was the agency's official policy. When Weaver was reprimanded for not adhering to agency regulations, the VOA referenced both her violation of the FAM regulation and the directive itself. Legal precedent supports the notion that individuals regulated by an agency can rely on the agency's representations regarding the meaning of regulations, as established in cases such as Cox v. Louisiana and Omnipoint Corp. v. FCC. The excerpt criticizes a new legal interpretation suggesting employees should disregard the agency's explicit directives and anticipate potential shifts in the agency's stance during litigation. This perspective is deemed unjust and contrary to the principle of accountability in government. The VOA’s previous enforcement of an unconstitutional regulation and its subsequent attempt to retract responsibility is portrayed as fundamentally unfair. The author argues that the chilling effect on free speech from employees who believed they must alter their work for approval is significant. The claim that employees have consistently complied with suggested changes indicates their understanding of a requirement, demonstrating that any ambiguity in the regulation poses a danger to First Amendment rights, akin to a direct ban on publication.
Ambiguous regulations can lead to significant issues regarding free speech, allowing agencies to suppress unfavorable publications while avoiding accountability in court. The majority's interpretation of such regulations contradicts the Supreme Court's ruling in Keyishian v. Board of Regents, which highlighted the chilling effect of undefined terms like "treasonable" and "seditious" on teachers' speech. The Court emphasized the need for clarity so that individuals are aware of what conduct may result in sanctions, thereby protecting First Amendment rights. The majority's reading of the regulation strays too far from its text, and it is the court's duty to interpret regulations as they are written, not to distort language to benefit the agency.
Furthermore, even if the majority's interpretation of the regulation were valid, it would still raise serious constitutional concerns due to its broad prepublication clearance requirement. The discussion of the Pickering/NTEU balancing test illustrates that when government employees speak on matters of public concern, the government must demonstrate that its interest in regulating that speech outweighs the impact on the employees' expression and the public's interest. Courts must maintain a balance between protecting speech on public issues and the practical needs of government operations.
The government has greater authority to regulate the speech of its employees compared to the general public due to its role as an employer tasked with specific missions. This distinction was highlighted in Waters v. Churchill, where the Supreme Court noted that the government's power stems from the need for effective operation within its agencies. When an employee's speech or actions detracts from an agency's mission, the government must have the ability to impose restrictions. The Court emphasized that the government’s interest in achieving its objectives as an employer is significant and must be considered in First Amendment analyses related to employment decisions. The reasoning for regulating employee speech is not based on potential embarrassment to the government or foreign policy concerns but rather on maintaining the effective functioning of the agency. For instance, if a government employee criticizes foreign policy in a manner that disrupts the agency’s operations, such actions may warrant disciplinary measures. The government cannot simply argue that any employee criticism undermines its mission; it must demonstrate how the speech directly interferes with the agency's specific objectives.
The government must demonstrate the necessity of speech-restricting regulations for effective mission execution. In *Snepp v. United States*, the Supreme Court upheld a CIA requirement for prepublication clearance of all writings by a former agent to protect classified information, emphasizing that violations impaired the CIA's statutory duties. Evidence indicated that sources ceased collaboration due to fears of exposure following Snepp's publication. The court later supported CIA secrecy agreements in *McGehee v. Casey* and affirmed that such agreements are essential for maintaining operational security in intelligence work. Similarly, in *Brown v. Glines*, the Court validated an Air Force regulation limiting petition solicitation by servicemembers, citing the unique demands of military discipline and duty. In these cases, the government demonstrated compelling interests in safeguarding classified information and sources, with the CIA's mandate to protect intelligence methods being paramount. The Court noted that individual judgments by former agents about harmful information could lead to unintentional disclosures that the CIA is better positioned to assess. Consequently, while government review for classified information does not infringe upon the First Amendment, the Voice of America (VOA) has not adequately justified the need for similar review across all its employees, as it does not function as an intelligence agency.
The mission of the Voice of America (VOA) is to disseminate public information globally, mandated to follow journalistic standards rather than intelligence protocols. Weaver holds a "non-critical confidential" clearance and solely processes public news for re-broadcast, claiming no exposure to classified material during her tenure. At the litigation's start, VOA operated in a shared building with the Department of Health and Human Services, where employee identification was not routinely required. The government's rationale for reviewing classified information among all VOA employees is questioned for lack of clarity. Even if such a need were demonstrated, it would not justify overriding employees' judgment regarding information release or accuracy related to their agency's responsibilities.
The government's prepublication review policy, which extends beyond classified material to include content and viewpoints, lacks support from precedent cases. The Supreme Court mandates that any government regulation aimed at addressing speech-related harms must provide concrete evidence of real and material harms rather than speculative concerns. The government claims the regulations serve significant interests in foreign policy and national security, aiming to prevent inadvertent disclosures of classified information and maintain the apolitical nature of VOA. However, the agency's argument that it must control all employee speech in matters affecting foreign relations for operational efficiency is seen as overly broad, contradicting established Supreme Court principles regarding government employee speech.
Government employees possess valuable insights regarding their agencies, which can contribute positively to public discourse. However, the Voice of America (VOA) expresses concern over employees participating in public debate independently, fearing potential risks to national security and foreign relations. The document argues that an article by a part-time employee, devoid of classified information, cannot reasonably pose such threats. It critiques the broad regulatory framework that inhibits more speech than necessary to protect legitimate governmental interests, emphasizing that prepublication review should be narrowly focused. The VOA's claims of potential harm from employee evaluations lack substantiation and rely on vague assertions about foreign relations and security. The text cites past legal precedents highlighting the need for concrete evidence before imposing restrictions on speech, suggesting that speculative harms should not infringe upon First Amendment rights. While the VOA's interest in maintaining an apolitical stance is recognized, it must be balanced against employees' rights to free expression.
A proposed solution to address concerns regarding employee publications is to require a disclaimer stating that the views expressed are personal and not those of the agency. The FAM regulations mandate this disclaimer, thereby reducing the need for extensive prepublication reviews of employee writings. The agency has not justified why this disclaimer, combined with its authority to discipline employees post-publication for disruptive writings, would fail to protect its interests in efficiency. Without legitimate interests to justify prepublication reviews, even minor restrictions on speech may be deemed unconstitutional under the Pickering/NTEU framework. The regulation is problematic as it broadly restricts speech, raising serious concerns due to its chilling effect on potential expression, as opposed to merely responding to actual speech. The document references a Supreme Court case emphasizing that society prefers to penalize speech after it occurs rather than impose prior restraints. The majority opinion underestimates the potential for informal government pressure on employees to alter their work, suggesting that advance notice of disapproval does not significantly burden them. This perspective fails to consider that employees may feel compelled to alter their work to avoid repercussions, leading to a lack of genuine freedom in their publications.
The reviewer’s prepublication determination labeling an article as offensive increases the likelihood of recommending sanctions if the article is published unchanged. Once the agency identifies material as objectionable, the risk of punishment for the employee rises significantly, akin to a child being punished after being warned against specific behavior. This creates a chilling effect, where the fear of sanctions leads employees to self-censor their speech to avoid jeopardizing their employment. The regulation is designed to induce caution, compelling employees to think carefully about their communications related to the agency’s mission and their job security. Although the agency may not be able to punish employees post-publication, the threat of sanctions remains a powerful deterrent, dissuading individuals from exercising their speech rights. The majority opinion suggests that employees should feel secure in their speech decisions, but historical precedent shows that no employee has felt safe enough to rely on the outcome of potential legal challenges to the agency's authority. The overarching conclusion is that the Voice of America (VOA) imposes excessive prepublication clearance requirements on its employees without sufficient justification, based on unfounded fears regarding potential harm to U.S. foreign relations. The agency has not provided evidence that warrants such broad prepublication review of employee publications concerning agency-related matters.
The regulation requiring official reviewers to identify unacceptable facts and conclusions in employee publications, and to suggest deletions without imposing immediate sanctions, infringes on employees' First Amendment rights. It imposes significant burdens on expressive freedoms without a demonstrated necessity for prepublication scrutiny to ensure efficient agency operations. This prepublication clearance process, based on viewpoint and content, exceeds previous restrictions upheld by the courts. The Supreme Court has emphasized that suppressing free speech requires more than speculation about potential harms; it necessitates concrete evidence of serious threats. The dissenting opinion stresses the need for reconsideration of free speech protections in light of this case.
Additionally, the excerpt notes that the review of Merit Systems Protection Board (MSPB) decisions can occur under specific conditions set by the Office of Personnel Management (OPM), which may affect the interpretation of civil service laws and policies. There is a recognition that the separate adjudication of claims may impact the viability of related personnel actions, although the plaintiff, Weaver, has indicated that her primary objective is to challenge the review requirement rather than contest the specific disciplinary action against her. Furthermore, the government has communicated that revisions to the relevant regulations are not imminent and that the current version remains in effect until changes are finalized.
Section 628 remains constitutionally valid, and its review scheme is broader yet more limited than previous provisions upheld in cases like Snepp, McGehee, and Marchetti. The Marchetti court noted that restrictions couldn't be placed on unclassified or officially disclosed information. However, the disclosure of classified information is a criminal offense with severe penalties under 18 U.S.C. § 798. Agencies may seek injunctions against employees who refuse to eliminate classified content, as established in Marchetti, where the CIA was permitted to prevent publication of classified material to mitigate potential harm.
The U.S. Information Agency (USIA) has a 30-day prepublication review limit, though it is unclear if similar timeframes apply to State Department and AID employees. The majority opinion acknowledges that subsection 628.2(a) clearly mandates submission of materials for review. In contrast, subsection 628.2(b) is deemed ambiguous by some, despite it explicitly stating that employees must not publish unapproved material. This requirement aims to prioritize the agency's judgment over the employee's.
The majority's rationale for interpreting section 628.2 ambiguously, citing uncertainty over the government's constitutional authority to punish non-compliance, does not align with the exceptions noted in Atlantic Cleaners. The claim of "obscurities" within the regulation fails to hold under scrutiny, as the meanings of "clearance" should remain consistent across relevant sections. The Atlantic Cleaners case differentiated meanings based on legislative authority, which does not apply here.
No employee may publish any material of official concern until it has undergone a clearance process. The term "clearance" implies more than just review, as subsection (a) uses both "submitted" and "clearance," indicating a distinct process. The government contends that its authority is limited to approving or disapproving submitted materials. The Voice of America (VOA) has an appeals process for denials, allowing authors to contest disapproval within five days. The necessity of such a review process raises questions about the agency's intentions. Evidence regarding the agency's current position on punishment for unapproved publications relies heavily on an outdated affidavit from a former executive assistant at VOA. If the majority opinion prevails, VOA employees may not receive clear guidance regarding the constitutional validity of the agency's past practices, which could impact other agencies under the Foreign Affairs Manual (FAM) regulations, including USAID and the State Department. Precedents suggest that agency interpretations during litigation do not bind the agency itself. Historically, the government had authority to restrict speech, but contemporary legal standards have evolved significantly since those times.
Punishment for speech must consider the context of the employee's role. A Department of Labor employee likely cannot be dismissed for criticizing the President on unrelated matters, as their rights as a citizen would prevail due to a weak connection to their employment. Conversely, a public critique of a direct supervisor could lead to disciplinary action under the Pickering test, as it would directly impact the government's interests. The Voice of America (VOA) is governed by principles aimed at maintaining accurate, objective, and comprehensive news that represents the U.S. broadly, rather than any specific group. The government’s justifications for regulating speech in this context were presented for the first time in this litigation, contrasting with prior cases where regulations responded to identified harms. The government cited Youngstown Sheet & Tube Co. v. Sawyer as a precedent for foreign affairs but acknowledged it was unrelated to First Amendment issues. Weaver failed to meet compliance requirements and does not contest the government's right to discipline her. Fundamental First Amendment principles assert that dissenting viewpoints cannot be regulated by the government, raising concerns over pre-publication scrutiny of employee manuscripts. Weaver criticized the VOA for alleged misuses of resources and questioned the accuracy of claims made against her. If she had received warnings about her statements being "inaccurate" or drawing "improper conclusions," it raises the question of whether the VOA could justifiably avoid sanctions for their publication without damaging their credibility.
