CHRISTOPHER R. COOPER, United States District Judge.
This case requires the Court to balance two constitutional imperatives: the independence of the federal judiciary on the one hand and the rights of citizens, including government employees, to engage in the political process on the other. The setting is the Administrative Office of the U.S. Courts, an agency in Washington, D.C. that provides centralized support to the federal judiciary. Earlier this year, the Office's Director revised the Code of Conduct that applies to its employees. The Code had always contained some prohibitions on employees' partisan political activity outside the workplace, but the revised Code is much stricter. For example, an employee may no longer express an opinion about a legislative candidate on Facebook. She cannot put a sign in her yard supporting that candidate. And she may not contribute funds to the candidate or his party or attend a party fundraiser.
The plaintiffs are two Administrative Office employees who wish to take part in political activity prohibited under the Code. They believe that some of the Code's restrictions violate their rights of free speech under the First Amendment and ask this Court to enjoin the Administrative Office from enforcing those restrictions against them. The Office admits that the Code limits the plaintiffs' protected speech. But it insists that the new rules are "necessary to maintain the public's confidence in the Judiciary's work." The question is whether that very legitimate concern outweighs the Code's significant burden on the employees' speech. The Court concludes that, for most of the challenged restrictions, it does not. It will therefore grant the plaintiffs' motion for a preliminary injunction and prohibit the enforcement of those restrictions.
I. Factual Background
The Administrative Office (or "AO") provides "legislative, legal, financial, technology, management, administrative, and program support services to federal courts."
The plaintiffs both work in Program Services, specifically its Defender Services Office. Lisa Guffey is an attorney-advisor who oversees the operation of federal-defender offices and court-appointed attorney programs around the country. Decl. of Lisa Guffey Supp. Mot. Prelim. Inj. ("Guffey Decl.") ¶ 2. Christine Smith evaluates the IT and cybersecurity needs of defender offices. Decl. of Christine Smith Supp. Mot. Prelim. Inj. ("Smith Decl.") ¶ 2. Both interact with federal judges and their staffs a handful of times per year, but neither plays any role in managing or deciding individual cases.
Prior to March 2018, nearly all AO employees (besides a few high-level "designated employees") could engage in certain off-duty "partisan activity" — that is, activity related to political parties, and to elections and candidates affiliated with those parties. These permissible activities included publicly expressing views about candidates, displaying political signs and badges, joining political parties, contributing to parties and candidates, and attending political fundraisers. With respect to state and local (but not federal) offices, employees could also endorse or oppose partisan candidates for office, drive voters to polls on behalf of parties or candidates, and organize fundraisers. Guffey Decl. Ex. D § 260(a)-(f) (AO Code of Conduct, 2016 version).
The plaintiffs engaged in activities permitted under the old policy. Ms. Guffey, an AO employee since 2010, has donated to the Democratic National Committee and to individual candidates, posted yard signs for local candidates, attended partisan fundraisers, and posted opinions about candidates on social media. Guffey Decl. ¶ 13. Ms. Smith, with the AO since 2016, has participated similarly and has also volunteered for local candidates. Smith Decl. ¶¶ 5-8.
The AO is led by a Director, who is appointed by the Chief Justice of the United States following consultation with the Judicial Conference (a group of judges responsible for policymaking in the federal courts).
When James C. Duff became the AO's Director in 2015, he and his Deputy Director began reviewing the agency's policies and procedures. They decided that the Code of Conduct, which had not been updated in about 20 years, should be revised to make it more consistent with the code that applies to the judicial-branch employees who work in federal courthouses around the country. Decl. of Gary A. Bowden Supp. Def.'s Opp'n ¶¶ 2-3. They drafted new restrictions on partisan activity to mirror those that apply to courthouse staff (like employees in the Clerk's Office, in payroll, or in the IT department). These restrictions are somewhat less stringent than those that apply to judges and their immediate staffs (like judicial law clerks and court reporters assigned to a particular judge).
The revised Code took effect on March 1, 2018. Soon after, counsel for the plaintiffs sent a letter to Director Duff protesting the application of the Code to his clients. Director Duff's reply reiterated his statement from the July 2017 memorandum that the Code was updated "to achieve consistency with the Judicial Code of Conduct ... that applies to all employees of the federal Judiciary." Guffey Decl. Ex. B, at 1. He further explained that the AO Code, like the code for courthouse employees on which it was modeled, sought to protect "[t]he government's interest in preserving public confidence in the integrity of its Judiciary" — an interest even weightier than that of preventing "the appearance of corruption in the Legislative and Executive Branches."
On May 31, 2018, the plaintiffs filed a complaint and a motion for a preliminary injunction. They claim that the following nine restrictions violate their rights under the First Amendment:
II. Legal Framework for Government-Employee Speech Restrictions
The First Amendment prevents the government from abridging the freedom of speech, and the partisan activity restricted by the Code undoubtedly is speech. So if the government tried to apply the Code's restrictions to ordinary citizens, it would be a clear-cut violation of the First Amendment.
It is well-established, though, that the government has more power to curtail the speech of its employees than it does that of "the public at large."
Specifically, the government "must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression's `necessary impact on the actual operation of the government.'"
The Supreme Court has not had occasion to apply the
Against that legal backdrop, the plaintiffs seek a preliminary injunction to halt enforcement of several partisan-activity restrictions in the revised AO Code. They are entitled to an injunction if they show that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest.
Likelihood of Success on the Merits
Again, the Court's task on the merits is to weigh the Code's burden on the current and future expression of AO employees against the restricted expression's "real" harm "on the actual operation of the government."
Before turning to that balancing, one preliminary note: The government has offered no basis on which to distinguish the two plaintiffs here from other AO employees to whom the challenged provisions also apply. And the Court sees no relevant line to be drawn.
1. Burden on AO Employees
The government accepts, as it must, that AO employees have a strong interest in freely participating in partisan politics. It also concedes that the challenged restrictions strike at the core of that interest. They prevent employees from publicly expressing opinions about parties and candidates, from displaying political messages, from contributing to parties and candidates,
The government seeks to downplay this burden by emphasizing that employees may still engage in non-partisan political expression, so long as that expression does not "tend to reflect adversely on the dignity or impartiality of the court" or interfere with their duties. Guffey Decl. Ex. A, at 17 (AO Code § 260(b));
2. Interest of the Government
Is the Code's burden on those rights justified? Answering that question first requires pinning down the government interest at stake, as its description has evolved since Director Duff initially issued the revised Code. The memorandum introducing the revisions emphasized the need for "unity of purpose" between the AO and the courts and highlighted the fact that the AO Code was previously "out of step" with rules for other judicial employees. Guffey Decl. Ex. A, at 1. Director Duff's letter responding to plaintiffs' counsel similarly focused on equalizing AO employees with courthouse employees.
This "unity" rationale has intuitive appeal. Placing identical restrictions on all judiciary employees may serve the worthy goal of publicly recognizing the AO's integral role in the judicial branch's work and overall mission. But achieving unity for its own sake cannot justify extending an existing speech restriction to a new group of employees whose job functions and workplace location distinguish them from those already covered. If uniformity were enough, the requirement that a restriction's scope be reasonably tailored would be meaningless; the scope of any restriction could be expanded to serve the interest of "treating people alike." Rather, the government's asserted interest must be tethered to the speech and to the speaker it is restricting.
Recognizing that a bare interest in alignment cannot support the Code's restrictions, the government in its briefing emphasizes a different interest: that of "preserving the public's confidence" in the "integrity and impartiality" of the judicial branch. Def.'s Opp'n at 3.
Protecting the appearance of judicial integrity and impartiality is without doubt a government interest "of the highest order."
Yet the interest in preserving public trust in the judiciary, no matter how potent, cannot be waved as a talisman to justify all restrictions on judicial employees. Deciding whether the government's interest carries the day requires clarifying what exactly the government fears.
Neither the memorandum announcing the new restrictions, nor Director Duff's letter in response to the plaintiffs' objections, nor even the government's briefing offers a particularized answer to that question. Based on counsel's presentation at the hearing, part of the government's concern seems to be that the public will see AO employees engaging in partisan activity and believe that partisanship has infected the judicial decisionmaking process.
The government has conceded that none of those beliefs would be rooted in reality. The relevant AO employees have no actual ability to influence a court's process of managing or deciding individual cases. Hr'g Tr. at 24. Nor do judges play any direct role in hiring or supervising AO employees, and in fact the two groups have limited contact. So save for egregious malfeasance, an AO employee could not sway the outcome of a case if she tried. And there is no factual basis — certainly the government has not offered any — for thinking that the partisan political views of AO employees (whatever they may be) reflect those of judges generally.
But because the government has an interest in preserving the appearance of impartiality — separate from its interest in guaranteeing actual impartiality — that concession does not defeat the government's position. Moreover, because the concept of public trust in judicial impartiality "does not easily reduce to precise definition, nor does it lend itself to proof by documentary record,"
Even giving the government the benefit of the doubt, however, the Court concludes
a. The Court finds that two restrictions do pass muster, and they are the two that also appear in the Hatch Act. Again, the Hatch Act forbids certain executive-branch employees — including all administrative law judges and all employees of law enforcement agencies like the FBI and CIA — from "tak[ing] an active part in political management or political campaigns." 5 U.S.C. § 7323(b)(2)(A). The Supreme Court has twice upheld that restriction (even as applied to all executive-branch employees) as consistent with the First Amendment.
True, the Supreme Court's approval of their application to executive-branch employees does not necessarily mean that they satisfy the First Amendment as applied to AO employees. There are justifications supporting restrictions in the political branches that have less force in the judicial branch — namely, that the restrictions protect rank-and-file civil servants from pressure from higher-ups to "perform political chores in order to curry favor with their superiors" or, worse, to vote a certain way.
Nevertheless, given courts' solicitude for the image of the judiciary, the Court believes that the government is justified in imposing these two restrictions on judicial-branch employees. Both restrictions target activity that involves not simply a personal display of partisan commitment, but rather an affirmative effort to enlist the partisan support of others — at least more so than the other AO Code restrictions that have no analogs in the Hatch Act. Attending a Republican rally reflects personal preference; organizing one requires recruiting others to the cause. Likewise, driving voters to the polls is a (fairly time-intensive) effort to rack up votes for your side. A member of the public could more plausibly view these two activities as evincing a partisan tie so durable that it could affect an AO employee's performance of her day-to-day duties. That belief would be misguided. But a layperson might not fully understand the relationship between the AO and federal judges themselves. He might believe that AO employees who engaged in those activities would exert pressure on judges and their immediate staff to decide cases a certain way or, even more cynically, could hamper judges appointed by presidents of the opposite party. The two restrictions that involve "active" participation in partisan management and campaigning — in the sense meant by the Hatch Act — seem more likely to instill that belief than the remaining restrictions.
In any event, the Supreme Court has "unhesitatingly" upheld these two restrictions even as applied to rank-and-file executive-branch employees,
b. By contrast, the Code's remaining seven restrictions — those conspicuously absent in the Hatch Act
The government faces an uphill battle in defending these restrictions. It has not offered any evidence that, in the twenty-some years during which many of the prohibited activities were allowed (at least with respect to state and local offices), any member of the public noticed that AO employees engaged in them — let alone that the public viewed that engagement as reflecting poorly on the impartiality or integrity of the judicial branch as a whole. Under a faithful application of the Supreme Court's framework for evaluating broad employee-speech regulations, the absence of any documented harm to public perception would doom the Code's restrictions.
Again, though, the nebulous nature of the government's interest in maintaining the appearance of judicial independence demands more deference than is proper in other cases. But even allowing for looser predictions of harm, the government has not met its burden with respect to these seven restrictions. It has struggled to generate
This is not surprising. At the core of each restriction lie run-of-the-mill acts of civic participation like speaking out publicly about a candidate, joining or donating to a party, or attending a rally. These are actions that, in the eyes of a reasonable member of the public, reveal only that the employee is politically engaged and prefers a particular candidate or party. None give rise to a justifiable inference that the judiciary has been infected by partisanship.
What about the perception that AO employees who engage in these activities might try to influence judges or cases? For a member of the public to see someone engaged in restricted activity — say, attending a rally — and draw the inference that the government fears, it would first need to know that the participant is an AO employee. (Or, in the case of a campaign contribution, the public would need to learn of AO employees' donation histories.) It would then need to draw three tenuous conclusions: First, that attending a rally reflects a partisan commitment serious enough to influence an AO employee's performance of her job duties. Second, that the politically inclined administrative employee could meaningfully influence judicial decisionmaking. And third, that the employee would choose to exert that influence, notwithstanding its obvious impropriety and its near-certain violation of other provisions in the AO Code.
What about employees engaging in more extreme displays of partisan belief — say, vitriolic social media postings or cable news interviews? Absent any evidence that such behavior was a problem in the past, the government's speculation that it might occur in the future cannot justify a broad rule that sweeps in a magnitude of more benign partisan activity.
If the fear is instead that the public will view the partisan activity of an AO employee as representing the political bent of the judiciary as a whole, the Code's restrictions are too broad a response. The Code forbids partisan activity even where the participant does not identify herself as a judicial-branch employee and even where
At the hearing, government counsel suggested a variant of this concern: that the public could come to view the AO as favoring one party in the aggregate, perhaps based on public records of employees' campaign contributions. Hr'g Tr. at 30. The idea being that, if the public thought the AO was filled with supporters of one party, it could think (incorrectly) that the judiciary had a similar partisan tilt. The legitimacy of that concern, however, depends on the premise that a large percentage of AO employees share a partisan viewpoint. That premise has no support in the record. Even if it did, the Court would hesitate to rely on it because it is transitory (it would evaporate if the AO became more ideologically balanced) and it would lead to a bizarre result (politically homogenous agencies could be subjected to tougher partisan-activity restrictions merely because of their homogeneity).
At bottom, instead of explaining concretely how AO employees' engagement in the restricted activities would lead to public distrust of the judiciary, the government has consistently retreated to generalities. It correctly notes the paramount importance of public trust in the courts and the fragility of that trust. Hr'g Tr. at 27, 32-33. But without a plausible showing that these interests will actually be jeopardized, their bare invocation cannot support imposing new speech restrictions on hundreds of employees who have little interaction with judges or litigants and no power over the management or resolution of cases.
Other Preliminary Injunction Factors
In addition to showing a likelihood of success on the merits, plaintiffs seeking a preliminary injunction must also show that they are likely to suffer irreparable harm in the absence of relief, that the balance of equities tips in their favor, and that an injunction is in the public interest.
As for the two restrictions on which the plaintiffs lack a substantial likelihood of success on the merits: for that reason, and because the equities favor the government, the Court declines to issue an injunction.
An independent judiciary is indeed a government interest "of the highest order,"
Given their job responsibilities and the location of their workplace, the plaintiffs and the vast majority of their AO colleagues have no ability to influence judicial decisionmaking or the handling of individual cases. Nor can routine expressions of their political preferences outside the workplace be fairly attributed to a particular judge or the judiciary as a whole. As a result, were Ms. Guffey or Ms. Smith to join the Maryland Republican party, or display a yard sign promoting a Democratic House candidate, or donate $200 to the Virginia Libertarian party — all examples of protected speech barred by the AO Code — it would do little to impugn the integrity or impartiality of the judicial branch in the public's eye. So while it is entirely right for the AO Director to take measures to strengthen judicial independence and its appearance, those chosen in this instance must yield to the plaintiffs' First Amendment rights.
The Court will, accordingly, grant the plaintiffs' motion for a preliminary injunction as to the following seven partisan-activity restrictions in the AO Code: those on (1) expressing opinions publicly regarding a political party or partisan candidate for office; (2) wearing or displaying partisan political badges, signs, or buttons; (3) contributing funds to a political party, political action committee, or partisan candidate for office; (4) attending partisan fundraisers; (5) being a member of a partisan political organization; (6) attending events for a partisan candidate for office; and (7) attending party conventions, rallies, or meetings. Those restrictions may not be enforced with respect to any AO employees except for the six high-level employees not at issue in this case. The Court will deny the plaintiffs' motion with respect to the other two restrictions: those on organizing events for a partisan candidate for office and on driving voters to the polls on behalf of a party or candidate.
A separate order accompanies this memorandum opinion.
In light of the Court's approval of two AO restrictions with parallels in the Hatch Act, this limited overlap raises a question: If the Hatch Act's restrictions are lawful but the AO Code's corresponding (and broader) restrictions are invalid as written, shouldn't the Court attempt to narrow the AO Code restrictions to align with those in the Hatch Act? While courts do sometimes impose those sorts of "saving constructions" on laws that are unconstitutional as written, the Court hesitates to go down that road here. For one, the government has not so much as suggested the possibility of narrowing these restrictions. Even if it had, "the words of the [challenged restrictions] simply leave no room for a narrowing construction."