Gov. Shapiro Gags Public Employees – FIRE Fights Back

​Most state constitutions allow for the issuance of Executive Orders (EOs) only for disasters and emergencies, but not to create policies. The reason is obvious – such orders are not passed by the people’s elected representatives, or easily subjected to judicial review.
 
A change of policy by EO is an especially harmful path when it skirts constitutional boundaries. But that’s the case with an executive order issued by Gov. Josh Shapiro (D) of Pennsylvania, who penned new restrictions prohibiting public employees from engaging in “scandalous or disgraceful conduct, or any other behavior, on or off duty, which may bring the service of the Commonwealth into disrepute.” The revision not only invokes conduct but speech, as the governor’s introductory recitals make clear.
 
Banning “scandalous or disgraceful” conduct is vague to the point of unenforceability – which the Foundation for Individual Rights and Expression (FIRE) pointed out to the Shapiro administration back in August. In a letter to the governor’s office, FIRE stated:
 
“The executive order and management directive violate the First Amendment because they unduly limit employees’ right to speak as citizens on matters of public concern, discriminate against speech based on viewpoint, and fail to give employees adequate notice of what speech is prohibited.”
 
Indeed, while government employers are within their rights to oversee employees’ on-the-job speech, government employees still retain First Amendment rights in their private lives – particularly on matters of public concern (whether the election, the Middle East conflict, or the guilt or innocence of Sean “Diddy” Combs).

Applying the Supreme Court’s decision in United States v. National Treasury Employees Union, in order to regulate an employee’s speech, the government “must make two showings: first, that it has identified ‘real, not merely conjectural’ harms; and second, that the ban as applied […] addresses these harms in a ‘direct and material way.’” Obviously, “scandalous or disgraceful” conduct is conjectural in the extreme – not to mention subject to the whims of unelected bureaucrats. The new order is neither narrowly tailored nor viewpoint neutral. To add a touch of hypocrisy, any number of elected officials at the state and federal level cannot clear the scandalous or disgraceful standard.
 
Unfortunately for all parties – especially the thousands of government workers in Pennsylvania prospectively targeted by this EO – the Shapiro administration failed to respond to FIRE’s good faith offer to help rewrite the directive and avoid a lawsuit. Now, FIRE is publicly calling for Pennsylvania state employees to contact them. They write:
 
“This isn’t a close call. Pennsylvania’s expansive restriction on state employees is unconstitutional. If the executive order is not promptly amended, FIRE looks forward to challenging it in court to defend public workers’ crucial First Amendment rights.”
 
Expect this EO to lead to a thousand abuses and ultimately terrible stories for Gov. Shapiro. Protect The 1st also looks forward to a court challenge, a necessary check on the expansive power of the executive pen.