Pennsylvania executive order gags public workers’ speech — on and off the clock

• From teachers to toll booth operators, librarians to linemen, Pennsylvania’s restriction is flatly unconstitutional and must be abandoned
• Pennsylvania workers deserve better than pearl-clutching government bureaucrats deciding whether employees’ off-duty expression is “scandalous” enough to merit punishment
• Restriction appears to apply even to faculty at Pennsylvania’s public colleges and universities 
• Free speech group FIRE announces statewide call for employees affected by the order to get in touch to challenge the order

HARRISBURG, Pa. Sept. 9, 2024 — A sweeping executive order from Gov. Josh Shapiro that gags public employees, even when they’re off the clock, is running headlong into Pennsylvanians’ speech rights. The order bars state workers from saying anything deemed “scandalous” or “disgraceful” — an impossibly vague restriction effectively prohibiting wide swaths of speech protected by the First Amendment.

Today, the Foundation for Individual Rights and Expression publicly condemns this unconstitutional executive order and announces a statewide call for plaintiffs to challenge it.

“Free speech is the keystone of our democracy, and today it’s threatened in the Keystone State by Governor Shapiro,” said Aaron Terr, FIRE’s director of public advocacy. “No elected official can slap a gag order like this on state workers. This is an abuse of power, and we’re looking forward to challenging this flagrant government overstep in court.”

FIRE raised the constitutional concerns to the governor’s office in August in a good-faith effort to restore Pennsyvanians’ First Amendment rights without resorting to a lawsuit. The governor’s office declined to respond to FIRE’s letter, prompting today’s follow-up and public appeal.

In early May, Shapiro quietly inserted vague language into his administration’s code of conduct, prohibiting “scandalous or disgraceful conduct, or any other behavior, on or off duty, which may bring the service of the Commonwealth into disrepute.” The revision ensnares not only conduct, but speech — a departure from a preexisting management directive that used the same language but didn’t clearly include expression. 

This isn’t a close call. Pennsylvania’s expansive restriction on state employees is unconstitutional.

The revision’s broader scope is clear from its introduction, which mentions both conduct and speech. A May 8 email on the revision from an administration official likewise warned that the need for “moral clarity is especially pronounced today, as antisemitism, Islamophobia, and other forms of hate speech are increasing across not only Pennsylvania, but nationally and globally.”

The policy changes appear to be a response to controversial speech and protests related to the Israel-Hamas war. So it’s easy to imagine the state punishing an employee for “scandalous” or “disgraceful” conduct because they support a boycott of Israel or attended a pro-Palestinian rally, as either action could offend those with different views on this polarizing issue. At the same time, others may consider an off-the-clock employee’s expression of support for Israel’s military operation in Gaza “scandalous” or “disgraceful.” (FIRE defends people on both sides of this issue, and all issues. If it’s protected by the First Amendment, FIRE will defend it.)

“The state is strategically putting all the chess pieces in place to punish everyday Americans for nothing more than saying something the government doesn’t like,” said Terr. “Our job is to smack those pieces off the board before someone gets fired for speaking their mind.”

Broad and subjective terms like “scandalous” and “disgraceful” reach a vast array of speech protected by the First Amendment. FIRE explained in its Aug. 5 letter that although the state exercises significant authority over its employees’ speech when they speak as part of their job duties, government employees still have robust First Amendment rights to speak as citizens on important issues. 

The U.S. Court of Appeals for the Third Circuit — whose decisions bind the commonwealth — previously blocked a Pennsylvania government agency’s enforcement of a ban on employees wearing political masks. The Third Circuit concluded the agency’s “fear that ‘Black Lives Matter’ and other controversial masks might cause disruption to its service” was “merely conjectural” and “a wide range of political and social-issue speech is not disruptive.”

This isn’t a close call. Pennsylvania’s expansive restriction on state employees is unconstitutional. If the executive order is not promptly amended, FIRE looks forward to challenging it in court to defend public workers’ crucial First Amendment rights. Any Pennsylvania public employees concerned about being punished for their expression should contact FIRE.

The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought — the most essential qualities of liberty. FIRE educates Americans about the importance of these inalienable rights, promotes a culture of respect for these rights, and provides the means to preserve them.

CONTACT:

Daniel Burnett, Senior Director of Communications, FIRE: 215-717-3473; media@thefire.org

Gov. Josh Shapiro’s Press Office: 717-783-1116; ra-gvgovpress@pa.gov 

James Madison,  Primary author of the First Amendment: Phone number unavailable