You're Fired?

Whether you see leakers as patriots or pests, some have recently asked: What protections, if any, do these public employees have if the Trump administration follows through and fires them?

I co-authored this week’s article with one of our summer associates, Thomas Paris, a rising 2L at the University of Georgia School of Law. And I use the term “co-authored” loosely; Thomas wrote this article and I edited it. Thank you, Thomas!

As some have put it, “The Ship of State is the only known vessel that leaks from the top,” referring to the White House as the primary source of unauthorized disclosures in our nation’s capital.

Whether used as cunning plays for power or strategic undermining, leaks of administrative policy have been pervasive throughout each presidency. There was actually a point in Reagan’s administration at which Secretary of State George Shultz didn’t utter a word during three high-level policy meetings due to his frustration with such leaks. Most would say leaks come with the territory.

It does seem, however, that the Trump administration is dealing with an unprecedented number of leaks. For example, in March, a private presidential briefing on the then-recent Russian election became public knowledge.

Another recent example is when the contents of a private White House meeting were leaked regarding confirmation of Gina Haspel to lead the CIA. The leak implicated former press aide Kelly Sadler, who allegedly made a comment stating John McCain’s vote didn’t matter because “he’s dying anyway.”

These are just two examples of many, many leaks from this administration.

Trump labeled the leakers as “traitors and cowards,” and Kellyanne Conway openly stated that personnel changes are expected in response to the leaks. Most recently, Press Secretary Sarah Huckabee Sanders condemned the leaks as an act of betrayal, noting the employees responsible “should be fired.”

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These recent outcries from the Trump administration do not involve the release of security or military information (and neither does this article). Criminal laws govern the leak of military secrets and national security information and most agree that unauthorized release creating a threat to our nation should be condemned.

Instead, these leaks focus on the inner workings of the administration, presenting the public with everything from private staff discussions to transcripts of President Trump’s phone calls. Leaks of this type create a much stronger divide on how the informants should be viewed and punished.

On one hand, some citizens see leakers as a destabilizing force creating significant disruption in the efficient governance of our nation. Others consider leaks as the foundation for transparency and government accountability.

Whether you see leakers as patriots or pests, some have recently asked: What protections, if any, do these public employees have if the Trump administration follows through and fires them?

First Amendment Rights of Public Employees

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Unlike private sector workers, public sector employees have a limited right to free speech under the First Amendment. If that right is violated the employee could be entitled to reinstatement and/or damages. But whether unauthorized informants such as White House leakers fall under these protections is relatively unclear.

In its 1968 seminal decision in Pickering v. Board of Education, SCOTUS held that public employees are entitled to protected free speech in certain situations. In doing so, the court set forth a balancing test that weighs an employee’s interest in commenting upon matters of public concern against the government’s interest in providing efficient public service.

While this balancing test seems useful in theory, it sacrifices certainty, the one concept that leakers and the administration are most likely looking for in these situations.

Why the Leakers Could Prevail as Protected

In a recent decision on the issue, SCOTUS held that the testimony a public employee gave at trial concerning his job was protected by the First Amendment. While not exactly on point for unauthorized leaks, the majority did give significant weight to the informed viewpoints that are unique to most public employees.

In particular, “speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment.”

This language favors the leaker, whose insight provides a benefit to the general public by promoting transparency in our government and accountability to those in public offices.

Why the Government’s Interest Could Outweigh Protection

Even if proponents of leaks say they are for the “greater good,” the government still has an important interest in running a smooth-sailing Ship of State. Therefore, if the leaks are as disruptive as the administration claims they are, then the value of efficient policy-making in a congenial workplace might curb the leaker’s right to protection.

For example, no First Amendment protection was provided for a Louisiana deputy sheriff who leaked photos of a crime scene to the local press. The district court used Pickering to demonstrate that the leak created significant disruption to the provision of public service.

While the holding was fact-specific (as are all cases decided under Pickering), it’s not far-fetched to say that high-level policy leaks might similarly go too far in derailing the effectiveness of our executive branch.

In the end, although free speech protections for unauthorized leaking of this type is far from certain, President Trump might want to think twice before rolling out his famous catch phrase, “You’re fired!”


evan-gibbsEvan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)