Government by NDA? Why Federal Workers Should Not Be Forced to Sign Away the Public’s Right to Know

The First Amendment’s guarantee of a free press doesn’t belong only to journalists. It belongs to every American who depends on reporters to expose waste, corruption, incompetence, and abuse of power.

That is why a recent proposal from the Trump administration deserves careful scrutiny. The Office of Personnel Management is proposing a government-wide policy that would require current and future federal employees to sign nondisclosure agreements (NDAs) restricting the disclosure of “non-public, confidential, or proprietary information” obtained through their work.

Violations could trigger disciplinary action, termination, and civil or even criminal penalties for disclosing even innocuous information. Former federal employees would be subject to these restrictions for up to five years after leaving their jobs. Agencies would have discretion to adopt the policy, but all agencies are now being treated as part of a unitary executive, so adoption should be expected. 

The administration argues that leaks undermine internal deliberations and effective governance. Officials contend that unauthorized disclosures can disrupt decision-making and erode trust among agencies. 

No one disputes that classified national security information must be protected. Federal employees already face extensive legal obligations regarding classified information, intelligence sources and methods, and other sensitive government data. 

But this proposal, by overshooting, targets the Constitution.

The draft language reportedly extends beyond classified information to a broad category of “non-public,” and “predecisional” information. Basically, anything. This standard is vague enough to encompass communications that reveal policy failures, bureaucratic misconduct, or politically embarrassing decisions – precisely the kinds of information that often become the basis for important investigative reporting. 

If enacted in years past, such an order would have barred any discussion by a former Biden official about that president’s cognitive competence in office. It could have chilled or prevented any disclosure by any official from the first Trump administration about the Jan. 6 riot. It would have criminalized discussions about the Pentagon Papers, the Watergate scandal, the Iran-Contra investigation, the thinking behind going to war in Iraq.

Even pedestrian revelations about wasteful spending, agency misconduct, regulatory failures, and abuses of authority would never be heard.

While the proposal states that employees would retain the ability to make disclosures protected under whistleblower laws and communicate with Congress or inspectors general, broad NDAs backed by civil and criminal penalties will create a chilling effect. The mere threat of investigations, legal expenses, or career consequences will discourage federal employees from reporting misconduct or speaking with journalists about matters of legitimate public concern. 

The Framers understood that self-government requires transparency. They did not create the First Amendment to protect government officials from criticism. They created it to ensure that citizens could learn what government is doing in their name.
​
You can submit comments in opposition to OPM’s draft proposal. If it is enacted anyway, it will be up to the courts to stop this effort to narrow the scope of the First Amendment.

DONATE & HELP US DEFEND YOUR FIRST AMENDMENT RIGHTS