By Andrew Malone, Staff Attorney, ACLU of South Dakota. This blog was originally posted on ACLU's Speak Freely.

Standing up for your First Amendment right to protest can be challenging — especially if you’re a government employee.

Since Dec. 22, nearly 800,000 government employees nationwide have been affected by the partial federal government shutdown, putting a stop to work and paychecks. Despite President Trump’s claim that federal workers “agree 100 percent with what I’m doing,” many have wondered about their right to protest during the shutdown — and whether there could be workplace retaliation for doing so.

Here are some answers.

Can federal workers organize a protest to convince government leaders to end the shutdown?

Yes. While federal employees are subject to certain restrictions of their First Amendment free speech rights while functioning in their official capacity, they still retain the right to engage in free speech activities as private individuals.

That said, it would be smart to check any employment policies that may apply to ensure that such speech and expressive activity is not listed as a violation of an employee handbook or code of conduct. If such policies cover private speech on a matter of public concern, they are likely unconstitutional, but the government may nevertheless attempt to invoke them.

Can federal workers protest during the shutdown without repercussion?

The Supreme Court has repeatedly held that people do not surrender their First Amendment rights by accepting public employment. Courts have drawn a line between work time and private time, so any restrictions about what a federal government employee can do in their personal time would be problematic. But if a federal worker organizes a protest, it is important to make it clear that the participants are doing so on their own time and not in their official capacities.

What is the Hatch Act and how does it affect federal workers?

The Hatch Act prevents certain federal employees from engaging in partisan political activities, such as engaging in partisan actions while on duty or using the employee’s official authority to affect the outcome of an election. However, the law does not prohibit federal employees from engaging in a protest or speaking out on a political issue outside of work hours. 

Can a federal worker talk to the media about the shutdown?

When federal workers are speaking as government representatives in connection with their official duties, then the government has a much greater ability to regulate such speech. But when federal workers speak as private individuals and outside of the scope of their employment, then they retain the usual First Amendment protections.

That means that while the government may be able to limit federal workers from speaking out about their problems with particular coworkers or internal management decisions by their supervisors, for example, the government certainly can’t prohibit a federal worker from talking about how the shutdown has affected their life — for example, having difficulty paying bills or stress at home.

Can the government regulate the speech of any federal worker?

The government may claim it has additional power to regulate the speech of certain high-level officials because such positions require personal loyalty and confidence for proper functioning. This makes it more difficult for such employees to know when their speech is subject to regulation.

Overall, the First Amendment right to join together in protest or peaceful assembly is critical to a functioning democracy. These protests reflect the profound importance of our constitutional right to peaceful assembly where people come together, voice their dissent, and organize for change.

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Blog by Neema Singh Guliani, ACLU Senior Legislative Counsel & Brian Tashman, Political Researcher and Strategist, ACLU. Originally published on ACLU's Speak Freely.

William Barr, President Trump’s nominee for attorney general, has a history of getting it wrong. From designing warrantless surveillance programs to justifying the president’s power to disregard acts of Congress, Barr has advanced dubious legal theories that have been rejected by the courts, Congress, and the public.

As Barr begins the confirmation process, senators must question Barr on his record regarding the right to privacy and the Fourth Amendment — which raises serious concerns about his suitability to be attorney general. Barr has violated or supported violations of Americans constitutional rights, leaving a disastrous legacy of warrantless spying and government abuse.

Barr was the godfather of the NSA’s bulk data collection program

While serving in the George H.W. Bush administration, Barr helped develop what became a “blueprint” for the National Security Agency’s mass phone surveillance program. In 1992, he and his then-deputy Robert Mueller authorized the Drug Enforcement Administration to begin amassing phone call data in bulk, orderingtelephone companies to secretly hand over the records of all phone calls from the U.S. to countries — which eventually grew to be well over 100 nations — where the government believed drug traffickers were operating.

As USA Today reported when the DEA program came to light, it “was the government’s first known effort to gather data on Americans in bulk, sweeping up records of telephone calls made by millions of U.S. citizens regardless of whether they were suspected of a crime.”

The DEA program ultimately became a model for the NSA’s phone records collection program under the Patriot Act of 2001, which the agency used to collect the domestic call records of tens of millions of Americans. The NSA program, exposed by NSA whistleblower Edward Snowden, was found to be illegal by a federal appeals court, and in 2015 Congress voted on a bipartisan basis to partially reform it. Barr, unsurprisingly, was an ardent supporter of the Patriot Act when it was enacted. In fact, he said the law didn’t go far enough.

Congress should question Barr about whether he will be a roadblock to still-needed surveillance reforms and whether he believes the government has the power to resurrect or expand warrantless spying programs.

Barr worked to make it easier for Verizon and other companies to hand over massive amounts of sensitive customer data to the government

In the George W. Bush era, during which Barr served as executive vice president and general counsel at Verizon, the telecom giant participated in a massive, warrantless surveillance program known as Stellar Wind. Under Barr’s watch, Verizon allowed the NSA to intercept the contents of Americans’ phone calls and emails and to vacuum up in bulk the metadata associated with Americans’ phone calls and internet activities.

This surveillance was prohibited by the Foreign Intelligence Surveillance Act (FISA), which Congress passed to regulate government surveillance practices and prevent abuses. The Justice Department eventually concluded in 2004 that portions of the program were illegal. Exact dates of Verizon’s involvement are not known, though documents suggest they participated at least as early as 2007. Other portions proved to be a forerunner of the NSA’s Upstream surveillance program, which the government continues to use today to unlawfully search Americans’ emails and internet communications without a warrant.

As Verizon’s general counsel, Barr later lobbied Congress to give telecom companies retroactive and future immunity from private lawsuits for participating in illegal surveillance programs, which would make sure that companies like Verizon would never be held accountable for helping the government violate Americans’ privacy.

Barr himself has held the legal position that Americans do not have a Fourth Amendment-protected privacy interest in data held by third parties — a view that the Supreme Court declined to adopt in last year’s pro-privacy ruling about cellphone location tracking by police.

Senators should question Barr on whether he still holds the position that individual’s do not have a Fourth Amendment-protected interest in information held by third parties. In addition, they should question whether he will support actions that widen the surveillance dragnet, as his history at Verizon suggests that he will have few qualms about conscripting other private companies — including tech giants like Facebook and Google — into handing over private user information to the government.

Barr has defended the president’s power to disregard laws passed by Congress

Barr is also an advocate of sweeping executive authority, which would have major implications for oversight. In a 1989 memo, Barr, then serving as assistant attorney general for the Justice Department’s Office of Legal Counsel, raised doubts about the ability of Congress to limit the executive branch’s powers, and he has even argued that the FISA law is too restrictive and that the president can disregard its limits under the guise of fighting terrorism.

As long as the president invokes national defense, Barr believes an administration could embark on virtually any endeavor. This philosophy helped lend credence to the radical theory that the executive branch has nearly unlimited counterterrorism powers that Congress cannot regulate, which is shared by the likes of John Yoo, who in the George W. Bush administration worked to justify the Stellar Wind program and torture.

This theory could be used as justification to flout laws passed by Congress addressing everything from foreign policy to immigration to domestic law enforcement.

The future of privacy rights

The Trump administration, with help from Congress, has already done grave harm to our right to privacy. While Trump has raised concerns about perceived surveillance abuses, albeit often with falseand misleading claims, he signed into law the FISA Amendments Reauthorization Act, which arguably codified and expanded certain surveillance powers.

Barr’s nomination is more evidence that the Trump administration will continue to pursue vast surveillance powers at the expense of our Fourth Amendment rights and will have little respect for Congress’ power. Members of the Senate Judiciary Committee must seize their opportunity to question Barr thoroughly and determine whether he will protect Americans from government intrusions and expansive executive power if he’s returned to run the Justice Department for a second time.

Learn about our work on privacy and surveillance issues

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Blog by Gavi Wolfe, legislative director at the ACLU of Massachusetts

Looking to 2019, states will continue to be critical battlegrounds in the fight against authoritarianism – and Massachusetts will be on the forefront. In the face of unprecedented challenges from the federal government, Massachusetts must exercise leadership to shape the future of freedom for our generation and those to come.

This legislative session, the ACLU of Massachusetts – together with our supporters, volunteers, and community partners – are setting out to reaffirm our democratic values and ensure civil liberties are not lost on our watch.

Here are just a few of our plans to build the future of freedom this session:

Technology & Civil Liberties

Biometric surveillance technologies – tools that track us based on our faces, voices, and even the way we walk – are being developed in the private sector and quickly attracting enthusiastic attention from law enforcement. If turned over to the government without proper civil liberties protections, these technologies will give government dystopian control over all of us.

The ACLU has a plan to ensure privacy protections keep pace with advancing technologies: It starts with hitting pause on unregulated government use of biometric recognition technologies. We’re calling on the Massachusetts legislature to enact a moratorium until the state adopts key protections for civil rights, due process, and racial justice.

At the same time, Beacon Hill must strengthen existing data breach laws to guard against misuse of biometric information. High-profile data breaches show the urgent need to protect sensitive data. Our faces, voices, and fingerprints should be protected just like our social security numbers.

Massachusetts is ideally situated to lead the way on responsible integration of machine learning technologies and other tools that impact people every day. As our government begins to turn to technology and big data to make determinations about everything from incarceration to parental rights, it’s time to convene a legislative commission of experts to study how Massachusetts can lead the nation in ensuring algorithmic fairness, transparency, and accountability.

Treatment, Not Imprisonment

In the midst of an opioid crisis that has claimed an increasing number of lives in Massachusetts and across the nation, public officials must do everything they can to support people in their efforts to overcome addiction. If our Commonwealth is serious about ending the opioid crisis, we need to reframe our approach to drug use – to one that is rooted in public health, not punishment.

That’s why, this legislative session, the ACLU of Massachusetts is prioritizing legislation that moves the state away from imprisoning people simply because they stumble on their road to recovery. When a person suffering from addiction is released by a court, it is both unsafe and unjust to require them to remain completely drug-free or else be sent to jail.

Smart Justice

Last legislative session, with major advocacy by the ACLU, the legislature passed sweeping criminal justice reform. There’s a tremendous amount to celebrate about the new law, from sentencing reforms to critical protections for people incarcerated in Massachusetts.

This session, the ACLU of Massachusetts is building on that landmark accomplishment by advocating for greater criminal justice transparency, with legislation to ensure district attorneys participate in existing data collection and reporting. A comprehensive picture of the criminal legal system – including prosecutors’ charging and diversion data – will better inform future policy-making in Massachusetts.

Going forward, Beacon Hill must also set new standards about when law enforcement can take people’s private property. In a recent report by the nonpartisan Institute for Justice, Massachusetts earned an “F” grade for its regressive asset forfeiture laws.

Reproductive Freedom

The Trump administration, politicians, and Trump-appointed judges across the country are waging a full-out assault on reproductive freedom – and we need to act to safeguard the right to abortion. As the Trump administration continues its daily attacks on our health and reproductive rights, and as the Supreme Court considers hearing a case designed to gut Roe v. Wade, we cannot be complacent here in Massachusetts.

In fact, even in Massachusetts, the constitutional right to abortion does not always translate into access to care.

An Act to Remove Obstacles and Expand Abortion Access, or the ROE Act, is the necessary policy prescription. By removing unnecessary, burdensome provisions that delay or deny care, Massachusetts will ensure all people can make decisions for themselves and access safe, legal abortion no matter what happens in Washington.

Voting Rights

At the ACLU, we have been working to guarantee voting rights for nearly 100 years, and will continue to work to protect and expand access to the ballot. It’s time for Massachusetts to join the 19 other states that have passed Election Day registration to help every voter in every city, town, and precinct exercise their right to vote. Increased ballot access and voter participation mean a stronger democracy.

Immigrants’ Rights

With the federal government continuing to detain and deport people in droves with zero regard for civil rights and family unity, Massachusetts needs to take concrete action. It’s time to step up, do right by immigrants and their families, and protect them from the worst excesses of the Trump administration.

From ensuring immigrants’ rights to due process and access to justice are never denied here in the Commonwealth, to limiting Massachusetts’ role in the White House’s continued attacks on immigrants, there is a lot of work we can – and must – do to affirm our country’s promise as a beacon of liberty for all.

Learn more about our legislative priorities

Read our roundups from the 2016-17 legislative session and 2017-18 legislative session.

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