By Lindsey Stiles (Rutgers Law Student)
White House directives put a muzzle on federal agencies as landing teams were put in place to manage agency re-alignment with the incoming Administration’s political agenda. These so-called “gag orders” halted external communication, prohibiting agency employees from publishing news releases, social media posts and blog updates, a move that led to cries of censorship and violations of free speech. Advocates rebelled on social media while other media outlets reported accusations that the Administration was specifically targeting agencies and programs that focus on climate change research, such as the Environmental Protection Agency.
This is not surprising considering President Trump’s history of climate change denial, tweeting as early as 2012 following President Obama’s reelection that “[t]he concept of global warming was created by and for the Chinese in order to make U.S. manufacturing non-competitive.” Nor are they calmed by his choice of Oklahoma Attorney General Scott Pruitt (R), who has downplayed the nature and extent of climate change, to lead the EPA. Additional concerns arose following comments made by incoming EPA official, David Kreutzer, when he suggested that we think of the positives of more carbon dioxide in the atmosphere, such as that it promotes plant growth.
But attacks on the Administration’s freeze of external communications suggesting a violation of free speech is overblown and, perhaps for the foregoing reasons, misguided. A number of commentators, including members of the Administration’s landing team, maintain that public response has distort[ed] “what appear[s] to be typical events … into perceived acts of political malice.” In other words, it is not uncommon for new Administrations to “pause” communication so that they can review the information and make sure that the information being disseminated aligns with its policy goals. Nor is it abnormal for administrations to try and control information in an effort to promote their political agenda. However, there is concern that this Administration’s attempt to control information appears to be “more sweeping” than ever before.
Spokesmen for the Administration’s EPA transition team announced that scientists’ research will be subject to review on a “case by case basis” before it may be published in an effort to ensure “that the voice coming from the EPA is one that’s going to reflect the new Administration.” More recently, congressional leaders have been inspired by the new climate change-doubting Administration in their renewed discussions of legislation designed to restructure the procedure by which the EPA utilizes scientific research in creating regulations. The first bill, also known as the Secret Science Reform Act, would permit regulations based only on scientific findings that are both reproducible and publicly available. Under the second bill, the EPA Science Advisory Board Reform Act, the board would be reconstructed so as to have fewer scientists and more “public input,” including industry representatives. While both certainly violate the agency’s integrity policy, which protects scientific findings from political interference and personal motivations, it is less certain whether they constitute an abridgment of free speech.
Although the question of whether scientific research is subject to constitutional protection remains unsettled, the Supreme Court has hinted that scientific speech is a protected form of expression. Specifically, and especially relevant here, the Court found that “[t]he First Amendment protects works which, taken as a whole, have serious … scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent.” (emphasis added.) Thus, it would appear that the proposed legislation, which specifically targets scientific research conducted and utilized by the EPA, might directly and/or indirectly violate free speech. The proposed limitation on “useable” scientific data would indirectly prohibit the use of protected personal health information as well as studies of one-time events, (think Gulf oil spill), delegitimizing otherwise valuable and reliable studies. Similarly, opponents of the Science Advisory Board Reform Act allege that it would lead to a stacking of the board with scientifically unqualified, industry-friendly members who will suppress or otherwise misrepresent any research which interfere with industry goals. Moreover, the pressure to produce politically favorable results not only undermines the marketplace of ideas, but also discourages and represses true scientific inquiry.
So what of the fact that we are talking about government employees? On the surface it appears that the government is free to suppress their scientific findings not in alignment with its political agenda. It is generally accepted that the government as an employer may exert more control over its employees than it may over the average citizen. Moreover, in 2006, the Supreme Court found that speech owing its existence to a public employee’s professional responsibilities is not protected. However, the 2012 Whistleblower Protection Enhancement Act might extend these First Amendment protections to those government scientists who report any manipulation or other political interference with their work to the extent they can show such disclosure concerned government activity they reasonably believed to violate a rule (such as the EPA’s integrity policy), is an abuse of authority or where they can show a substantial and specific danger to public health or safety.
As much of the outcry appears to stem from assumptions based on campaign rhetoric and political appointments, whether the EPA’s research is in danger remains to be seen. That being said, agency scientists who enjoy less protections than the average citizen may be limited to whistleblowing as their only means by which to protect their research.