California Gag Clauses Might Violate First Amendment

California Gag Clauses Might Violate First Amendment

( — In March 2019, employees at the California Department of Tax and Fee Administration (CDTFA) received an email telling them that they should not talk to the media when it comes to issues within the company. The email stated:

“The general message of the policy is that when staff receives inquiries from reporters, they should refer them to their supervisor or manager as those inquiries are handled by CDTFA by what is now called our External Affairs Division.”

Later that day, a news story aired on a local station about riot buttons that had been installed in a few elevators, something that alarmed many employees. A few of them were interviewed for the story. Many people believe that this prompted the email that was sent out earlier in the day.

Unfortunately, our school system has failed many citizens when it comes to teaching them about the First Amendment, so a lot of the employees who received this email didn’t realize that it could be in violation of their rights. In this video, Floyd Abrams, a First Amendment Attorney, explains what the right to free speech truly means.

Non-Disclosure Agreements and Free Speech

There are many types of jobs that require employees to sign non-disclosure agreements (NDA). However, according to the Brechner Center for Freedom of Information, the type of blanket restriction that the CDTFA tried to impose on its employees is unconstitutional.

Citing Supreme Court decisions the paper released by Brechner said, “People don’t forfeit their constitutional rights, including the right of free expression, simply by accepting government employment.”

In 2017 the Ninth Circuit Court of Appeals ruled in favor of a state trooper who was reprimanded for discussing a K-9 program that the Nevada Highway Patrol was taking part in.

The ruling stated that “Avoiding accountability by reason of persuasive speech to other government officials and the public is not an interest that can justify curtailing officers’ speech as citizens on matters of public concern.”

Government Agencies

Even though it appears that these types of restrictions violate the First Amendment, there are many government agencies in California that enforce them. The Department of Tax and Fee Administration, Department of Motor Vehicles and the Employment Development Department are among them.

When asked about the restrictions placed on employees, a spokesman from the Franchise Tax Board said:

“Directing media inquiries to public affairs minimizes the risk of inadvertent disclosure of such personal details, therefore providing an extra layer of protection for taxpayers. In addition, having public affairs as a central point of contact helps ensure prompt responses to media inquiries as well as consistent and accurate information.”

New precedents could be set as these agencies defend their policies and more people take up the fight to defend First Amendment rights.

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