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Federal Workers Can Receive Pay for outside Writing

Magazine article Editor & Publisher

Federal Workers Can Receive Pay for outside Writing

Article excerpt

A RULE BARRING federal workers from receiving pay for speeches or writing outside their official duties was found by the U.S. Supreme Court to be "the kind of burden that abridges speech under the First Amendment."

The rule stemmed from the 1989 Ethics Reform Act, which sought to prevent the appearance of impropriety by members of Congress and their staffs.

Justice John Paul Stevens, writing for the 6-3 majority, ruled that "the speculative benefits the honoraria ban may provide the government are not sufficient to justify this crudely crafted burden on respondents' freedom to engage in expressive activities ... [The rule] violates the First Amendment."

In addition to noting that "[f]ederal employees who write for publication in their spare time have made significant contributions to the marketplace of ideas," Stevens also pointed out that working for the federal government does not mean staffers relinquish the First Amendment rights other citizens enjoy.

"Publishers compensate authors because compensation provides a significant incentive toward more expression," Stevens wrote. "By denying respondents that incentive, the honoraria ban induces them to curtail their expression if they wish to continue working for the government.

"The ban imposes a far more significant burden on respondents than on the relatively small group of lawmakers whose past receipt of honoraria motivated its enactment."

Further, he continued, "The honoraria ban is unlikely to reduce significantly the number of appearances by high-ranking officials, as long as travel expense reimbursement for the speaker and one relative is available as an alternative form of renumeration ....

"In contrast, the denial of compensation for lower-paid, nonpolicy-making employees will inevitably diminish their expressive output.

"The large-scale disincentive to government employees' expression alos imposes a significant burden on the public's right to read and hear what the employees would otherwise have written and said," Stevens wrote.

Justice Sandra Day O'Connor agreed with the court that the ban violated the First Amendment, but dissented on the point of "whether it is constitutional to apply the honoraria ban to speech . …

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