330 F. Supp. 3d 66
D.C. Cir.2018Background
- Administrative Office (AO) revised its Code of Conduct (effective Mar. 1, 2018) to sharply restrict off-duty partisan political activity by most AO employees; Director Duff stated revisions aligned AO policy with judicial-branch employee rules to preserve public confidence in the judiciary.
- Plaintiffs Lisa Guffey and Christine Smith (AO Program Services employees who interact rarely with judges and do not manage or decide cases) sought a preliminary injunction challenging nine specific partisan-activity restrictions as violating the First Amendment.
- The challenged restrictions bar activities including public expressions for/against partisan candidates, displaying political signs/badges, contributing to parties/candidates, attending fundraisers/party events, being a partisan party member, organizing events, and driving voters to polls.
- Government defended the Code as necessary to preserve the appearance of judicial integrity and unity between the AO and the courts; it modeled some restrictions on the Hatch Act and on courthouse employee rules.
- Court applied the Pickering/NTEU balancing framework for government-employee off-duty speech, with heightened scrutiny for broad prospective rules affecting many employees.
- Court granted a preliminary injunction invalidating seven of the nine restrictions for most AO staff, but declined to enjoin two restrictions (organizing partisan events and driving voters) that resemble Hatch Act prohibitions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AO Code's partisan-activity restrictions violate the First Amendment under Pickering/NTEU | Guffey/Smith: restrictions severely burden protected political speech of AO employees who cannot influence judicial decisions; government offers no concrete evidence of harm | Duff/AO: restrictions are necessary to preserve public confidence in judicial integrity and to align AO with judicial branch standards; some restrictions mirror Hatch Act | Court: Likely success for plaintiffs as to most restrictions; burden not justified absent concrete harms; prelim. injunction granted for most provisions |
| Validity of restrictions on organizing events for candidates and driving voters to polls | Plaintiffs: these too burden speech and association | Def.: these are active-campaigning activities akin to Hatch Act prohibitions that meaningfully risk the appearance of partiality | Court: Did not find plaintiffs likely to succeed on these two; these two restrictions may be enforced (injunction denied) |
| Validity of restrictions on public expression, displaying political insignia, contributions, fundraisers, party membership, attending events/conventions | Plaintiffs: routine civic acts; speculative appearance harms cannot justify broad ban; disciplinary measures suffice for outliers | Def.: public perception harms justify broad prophylactic rules to protect judicial integrity | Court: Likely invalid; government failed to show real, non-speculative harms or narrow tailoring; injunction granted for these seven restrictions |
| Preliminary-injunction factors beyond likelihood of success (irreparable harm, equities, public interest) | Plaintiffs: loss of First Amendment rights is irreparable; equities and public interest favor free speech | Def.: preserving appearance of impartial judiciary is compelling and favors AO | Court: First Amendment harm is irreparable; equities/public interest favor plaintiffs for the seven invalidated restrictions; they are entitled to preliminary relief |
Key Cases Cited
- United States v. Nat'l Treasury Employees Union, 513 U.S. 454 (1995) (broad employee-speech rules require stronger justification; regulation must prevent real, not speculative, harms)
- Pickering v. Board of Education, 391 U.S. 563 (1968) (balancing test for public-employee speech on matters of public concern)
- Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018) (heightened scrutiny for prospective, widespread speech rules affecting future employees)
- U.S. Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548 (1973) (upheld Hatch Act limits on partisan activity for executive-branch employees)
- Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015) (recognizes supreme importance of preserving public confidence in judicial integrity)
- Buckley v. Valeo, 424 U.S. 1 (1976) (speech and association protection for political expression; campaign finance restrictions reduce quantity of political expression)
- Mills v. Alabama, 384 U.S. 214 (1966) (First Amendment protects discussion of candidates and public issues)
- Kusper v. Pontikes, 414 U.S. 51 (1973) (right to associate with a political party is constitutionally protected)
- Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) (regulation must directly and materially alleviate predicted harms)