US Judiciary Wants Ruling on Staff Political Speech Reviewed

Rules preventing the US judiciary’s administrative office employees from engaging in political activity are needed to protect the third branch’s “reputation for impartiality,” the judiciary said in asking for review of a ruling finding the restrictions unlawful.

In a Monday filing, the judiciary said a three judge-panel of the US Court of Appeals for the District of Columbia Circuit erred when it held those rules for employees of the Administrative Office of the US Courts violated their constitutional right to free speech.

It’s asking for a rehearing before all of the D.C. Circuit’s judges.

“The panel judgment’s ultimate effect is to significantly limit the Judiciary’s ability to protect against threats to its reputation for impartiality and nonpartisanship,” Justice Department lawyers, who represent the federal judiciary in court, wrote in the petition for an en banc rehearing.

The judiciary’s argument that the rules were designed to prevent reputational damage didn’t persuade the majority in the court’s 2-1 decision in May. The majority called those concerns “too speculative” when siding with the employees—Lisa Guffey and Christine Smith—who challenged the restrictions.

In its new filing, however, the courts’ office said the majority “discounted” the threat employee political activity poses to courts and said the judiciary didn’t have to show that there already was harm to try to avoid it. It argued: “the AO’s reasonable predictions of harm based on the experiences of other government agencies are sufficient.”

The administrative office, which has roughly 1,100 workers, implemented the restrictions at the center of the dispute 2018. The rules prohibited donating to political campaigns, attending partisan rallies, and expressing political views on social media.

The Justice Department represents the AO, and the ACLU Foundation of D.C. represents the judiciary workers.

—With assistance from Jacklyn Wille

The case is Guffey v. Mauskopf, D.C. Cir., No. 20-5183, petition for rehearing en banc 11/7/22.