Proposed NDAs for federal employees could face constitutional obstacles

Guest:	Jules Torti
Title:	Counsel for Protect Democracy
Summary:	The Office of Personnel Management's proposal to institute a standardized NDA that federal workers could be required to sign as a condition of employment has made for much discussion in federal workforce circles. While many are concerned with the chilling effect it could have on workers, some are wondering about the possible violation of first amendment rights.

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Jules Torti I mean, my first reaction was that this looks like a prior restraint in violation of the First Amendment, which the Supreme Court has said is one of the worst types of First Amendment violations. My second thought was, doesn’t this interact with existing whistleblower protections in a way that is really inconsistent with the law? And of course, my third was, this is just fantastically bad policy from a kind normative perspective.

Eric White Gotcha. Okay. And so yeah, let’s break those down. You know, from the First Amendment rights perspective, taking it outside of being a federal agency doing this to its employees, what rights do folks have? I mean, the First Amendment usually is one of the most sacred ones that people cite in the Bill of Rights. What standpoint do NDAs have for covering and hindering any of those First Amendment Rights? Like I said, whether it’s a federal agency or a large corporation that you’re working for?

Jules Torti Well, Eric, I think you have it exactly right in terms of the primacy of the First Amendment. The First Amendment is quite literally at the top of the Bill of Rights. It was considered by the founders to be one of the most important protections, not only for individual liberty, but to protect the fragile democracy that they were building. But I do think that it’s important to look at federal employees as distinct from just kind of regular private sector employees for the purposes of the First Amendment here. And that’s because there are some restrictions that the Supreme Court has said the federal government can put on federal employees, but they have been clear throughout recent history that federal employees can speak out on matters of public concern. They have those clearly established First Amendment rights. Of course, it can’t be on the clock. It can’t be using government devices or property or things like that, but the core right remains the same. If there’s a matter of public concerns, just because you’re a federal employee, it doesn’t mean that you can’t speak out against it. And that right is really what these proposed NDAs would curtail. And that honestly is going to be different in the private sector. And I wouldn’t really be able to speak to exactly what the limits are in the public sector. There’s differences for industries and things like that. But what we do know is that it violates the First Amendment rights of federal employees if implemented.

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Eric White Gotcha. OK. And then going into whistleblower protections, whistleblower advocates will tell you, it doesn’t matter who’s in the White House, that whistleblower rights have been trending in the wrong direction. And this would probably be another step down, I imagine, in their eyes. What whistleblowers protections could come into play here if this policy is enacted? Because whistleblow protections are supposed to even supersede NDAs because you’re supposed to be pointing out something that would negate the NDA because a possible crime or putting people in danger, something else is at play. What would they have to say about this?

Jules Torti So Congress has repeatedly protected federal employees’ ability to speak up about things like fraud, waste and abuse. And again, that’s not really for the protection of the federal employee as much as it is that we need to know what’s happening within our government in order for it to function properly and in order for Congress to play any sort of meaningful oversight role about what the federal government is doing. And so the Whistleblower Protection Act says that you can disclose fraud, waste, and abuse to Congress and to the public. And the NDA requirement would really flip that law on its head. The NDA, as proposed by OPM, would require that disclosures be affirmatively pre-authorized by a small group of people. So it’s before you spoke out you’d have to get authorization from someone in the government, maybe even the same people you’re trying to report for fraud, waste and abuse. Whistleblower law now protects that without any pre-authorization. So, instead of, you can disclose unless a law specifically forbids it, which is the actual law right now, the practical effect becomes you can’t disclose unless someone approves it first. And that’s just directly at odds with what Congress intended and with what Congress wrote.

Eric White Jules Torti is counsel with Protect Democracy. And let’s get into the policy standpoint of it. Because once again, whether or not you agree with the idea or not, I imagine that this is going to be tied up in courts for so long that it may not even get to be implemented. As a counsel, I’m asking you to, I know, speculate a lot on the details. But you don’t foresee this going down easily, right? I mean, there are going to tons and tons of suit brought for, A, employees that are current and don’t want to sign it or B, prospective employees who say, you know, they get a job offer but they have to sign this and then they’re turned down, that could end up in court as well, no?

Jules Torti Any of those things could end up in court. I will say the state of federal employee litigation is in flux right now. And it’s really hard to predict exactly what sorts of cases will really be meaningfully heard by a court or an adjudicative body, and what won’t. So traditionally, employee suits around personnel matters have been heard by the Merit System Protection Board, which was a neutral board of commissioners who enjoyed protection from removal by the president and that adjudicated employee disputes, many of them. And in fact, the courts found that Congress had established this kind of special tribunal as the exclusive remedy for some of federal employees’ employment-related disputes. And so they wouldn’t touch them. They said, you can’t come into federal court. You have to go over to the MSPB, the Merit Systems Production Board. Now, of course, President Trump fired members, at least one member of the Merits Systems Production Board, and recently in the Slaughter case, the Supreme Court upheld the president’s firing of commissioners of formerly independent agencies, saying that he has the constitutional power to remove those commissioners. And so I know we kind of took a detour here into Supreme Court case law, but it has really seismic effects on what federal employment litigation looks like. So you’re absolutely right, Eric. Two years ago, I would have said, of course, there’s going to be a ton of employees running in and saying, this violates my First Amendment rights. I can’t be forced to sign this. This is inconsistent with other obligations. And there would have been a venue for them. I’m not so certain about whether federal employees have a meaningful neutral venue right now. And I think we’re going to increasingly see federal employees turning to the federal courts and saying that somebody needs to adjudicate their disputes, especially here where they’re constitutional in nature. You kind of said, there’s no way this is going to roll out, right? Like, it’ll be challenged in court. And I just want to kind of clarify some kind of maybe a misconception from outside the legal world, which is that nothing really happens until a court says yes. In fact, things happen and they keep happening until a court says no. And that can take time. Our judicial system does not quickly and so legal challenges are one strategy to push back on illegality by this administration, but they’re really not the only and sometimes they’re not the most effective. They’re certainly not the quickest in many circumstances.

Eric White Gotcha. That’s interesting, because that kind of takes away from what my next question was going to be, which was, if, say, an administration, whether it’s the current one or a future one, if they are really trying to protect information and stop folks from running out and talking to the press or organizations like yourself, is there any avenue that they have that in your eyes would be legal and not violating their First Amendment rights? Or is that kind just, they’re gonna have to accept that there are always going to be whistleblowers and leaks that they’re not going to approve of, and that’s just kind of the cost of doing business?

Jules Torti That’s such an interesting question because there are already many protections about information within the federal government that isn’t allowed to leave. There is sensitive national security-related information, and there are statutes that govern when that can be disclosed and when that cannot. There are internal deliberations that often can’t be disclose. There are state secrets. There’s a bunch of both laws that Congress has passed and doctrines that the courts and develop to shield a lot of information within the federal government from public view. If you’ve ever filed a FOIA request and gotten a response from the government, I will say I used to be one of those government attorneys, you know, sending, helping agencies send those responses to FOIA requests in some circumstances. There’s a long list of reasons the federal government can point to to say, no, we don’t have to disclose that. Maybe there’s an active investigation going on. Maybe it’s something else. So, what we at Protect Democracy, along with our colleagues at Democracy Forward, tried to articulate in our letter to OPM about this proposal is that there are already sufficient protections, statutory, regulatory, judicial protections against a lot of information leaving the federal government. And in fact, OPM actually seems to acknowledge this. OPM says in their proposal. This does not create any new legal obligations. This is just to let federal employees know about their obligations and make them promise. So it’s puzzling in that way. We can talk more about why I don’t actually think it’s a puzzling. They are proposing this really dramatic, really restrictive NDA that they themselves say actually doesn’t really do anything. And so then the next question for me is, well, why are they proposing it? And that’s where I think kind of an interesting conversation can happen.

Eric White Yeah, I think we’ll let our listeners discern from themselves and read the tea leaves on why exactly that this is being implemented at all. But I appreciate you filling us in with the legal insight. I wanted to finish up here by just talking a little bit about your work with Protect Democracy in the Civil Service Archive. I know that I’m probably not giving it its due time in asking you to tell me in a short answer of what you’re doing there. But if you could try, I would appreciate it.

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Jules Torti Absolutely. So the Civil Service Archive is an online repository of all policy changes that are internal to the government, that change how your government works. Oftentimes the stuff is wonky, it’s not public, or it’s technically public, but isn’t posted anywhere. Even if it is, it is written in really technical language. And so what the Civil Service archive tries to do is break down, what are these changes? What do they mean? And that’s at civilservicearchive.org. We’ve tagged everything, we’ve tagged stuff that’s related to each other. You can see trends, you can see connections. And then the other resource I’d recommend to readers is our substack called Dear Civil Servant, which is part of our Protect Democracy’s If You Can Keep It substack, where we try to take big changes to the civil service and break them down in plain language, make them accessible. And so both of those resources I think could be really useful to your listeners.

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