In early May, Gov. Josh Shapiro’s office instituted a new policy concerning the conduct of all state employees, citing a need for “moral clarity” during controversy surrounding the Israel/Gaza conflict. But rather than setting commonsense ground rules, the new policy vaguely and illegally restricts the First Amendment rights of all state employees — and opens up the state to litigation if it ever enforces its own policy.

And now a national free-speech advocacy group is threatening just that.

The most glaring issue with the policy is the subjective criteria that may now be used to discipline or even terminate state employees: They are barred from engaging in any conduct labeled as “scandalous or disgraceful … which may bring the service of the commonwealth into disrepute.”

“Scandalous” and “disgraceful” are not legal terms, nor are they defined in the context of the rule. They could easily be interpreted to include essentially any conduct reigning state leadership does not approve of.

Would speaking to a journalist about a matter of political sensitivity for the governor — such as the sexual harassment allegations against former Secretary of Legislative Affairs Mike Vereb — be considered “scandalous”? Would performing in a community theater production that includes elements some consider offensive be considered “disgraceful”? (Then imagine what performances a Doug Mastriano administration might consider “disgraceful.”) What about signing a petition, or attending a protest?

Indeed, the timing of the quiet update, during the height of Gaza protests, signals an effort to quell activism the governor himself disagrees with.

The executive order accompanying the amendment argued that the new rules were “consistent with the First Amendment, but that speech may never incite violence, encourage people to violate the law, or harass others.” If the policy itself used language this precise, it wouldn’t be a problem. But instead, it used vague descriptors seemingly designed to have the “chilling” effect on speech the U.S. Supreme Court has struck down again and again: If people don’t know where the line is, they’ll censor themselves far beyond what the rule even intends.

As the Philadelphia-based Foundation for Individual Rights and Expression (FIRE) noted in a letter to Mr. Shapiro: “This vague, viewpoint-based restriction violates the First Amendment rights of thousands of commonwealth employees, who do not lose their right to speak on matters of public concern simply because they work for the government.”

Gag clauses barring employees from speaking to media have been consistently upheld as unconstitutional — most recently, and locally, when the Pittsburgh Institute for Nonprofit Journalism’s Brittany Hailer won a case against Allegheny County to reaffirm that Department of Corrections employees cannot be barred from speaking to the media. In its vagueness and its chilling effect on all forms of speech, not just speaking with journalists, the Shapiro policy goes far beyond even typical gag rules.

Citizens do not relinquish their constitutional rights upon entering government service. The Shapiro administration should rescind its broad and vague free-speech restrictions — before spending taxpayer dollars defending a policy the courts will certainly throw out.

First Published: September 13, 2024, 9:30 a.m.