by Dylan Jaskowski, Administrative Law Intern
Rules and Regulations Regarding DOD Civilians and Extremism
This is part 2 of a 2 part article series regarding extremism in the Army. For rules and regulations regarding service members, please see the article entitled Combatting and Defining Extremism.
I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well; and faithfully discharge the duties of the office on which I am about to enter.
This is the oath that all Department of Defense (DOD) civilian employees must take before beginning their work in the Department. On February 5, 2021, Secretary of Defense Lloyd Austin issued a “stand down” at all levels to address issues of extremist ideology within the DOD organizations, including the civilian workforce. This “stand down” was particularly concerned with ideologies and activities that directly oppose the oath taken when civilians and service members begin their service.
While the Office of the Secretary of Defense believes the vast majority of service members and civilians perform their jobs with integrity, the January 6 storming of the Capitol has led to increased scrutiny throughout the DOD to weed out participation in extremist activities and organizations. DOD civilians may be highly sought after by extremist groups for their connections or specialized knowledge. DOD civilians may be subjected to greater recruiting efforts from extremist groups than service members, due to their increased connection to the civilian world.
The DOD does not currently have a definition of extremism and civilian employees have greater free-speech rights under the First Amendment than service members. Because of this, on the surface, it is not entirely clear what types of behavior could lead to discipline or termination for a civilian employee. Under the Supreme Court’s ruling in Garcetti v. Ceballos (2006), employees do not have free-speech protections for statements made in the performance of their official duties. However, even off-duty conduct can be punished if it is sufficiently related to employment duties or is so egregious that it is likely to affect the functioning of the employee or the office in which the employee works. This second category of off-duty conduct is generally limited to actions such as violent crimes. However, for employees entrusted with sensitive information or responsibilities, such as attorneys or law enforcement officers, these types of employees may be punished for a wider range of conduct, as such conduct may demonstrate an inability to effectively complete official duties.
If conduct is not sufficiently connected to job duties, it could still be punishable under the Pickering-Connick Test which is named after two different Supreme Court cases relating to conduct or speech made by government employees. Under this test, if speech concerns a matter of public importance, it may be protected. If, alternatively, it is a private grievance, the employee does not have First Amendment protections for that conduct. If the speech is on a matter of public importance, a court will then consider whether the free speech rights should outweigh the employer’s rights to a workplace free of disruption.
Further, a Court is likely to find that First Amendment protections do not exist when the conduct is the same type of behavior that the organization is tasked with stopping. This could mean that prohibited conduct will vary based on job duties, but as a baseline, any conduct that undermines the oath civilians take prior to their service likely will not be protected. For example, support for the January 6 storming of the Capitol, or other anti-government militia movements would likely be perceived as opposed to the oath to defend the Constitution and such conduct would not be afforded protection under the First Amendment the same way statements that threaten public safety or individuals is not protected speech. However, participation in advocacy groups on public issues is likely protected, so long as the subject matter is not related to the subject matter of official duties, and DOD employees do not issue states on behalf of the DOD or in a manner that could be interpreted in that way.
It is also important to note that employees that hold security clearances must comply with the National Security Adjudicative Guidelines to ensure they preserve the trust and confidence of the United States Government to continue eligibility for access to classified national security information or eligibility to hold a sensitive position. Participation in extremist activities or organizations could subject the employee to disqualification from, or revocation of, a security clearance under Guideline A (Allegiance to the United States), Guideline E (Personal Conduct), Guideline I (Psychological Conditions), Guideline J (Criminal Conduct) or Guideline L (Outside Activities).
In conclusion, civilian employees should carefully consider what organizations and causes they participate in. If they are unsure whether a particular organization qualifies as an extremist organization, the safest approach is to cease involvement in that organization.
To discuss any personal legal questions, please contact the Legal Assistance Office to request an attorney consultation: 301-677-9504/9536.