As the inestimable Steve Aftergood noted last week over at Secrecy News, the Director of National Intelligence, James Clapper, has issued a new “Intelligence Community Directive” (Directive 119) covering most Intelligence Community (IC) personnel, which basically bans them from discussing “intelligence-related information” with the media unless they have an authorized reason for doing so. There are lots of reasons why the Directive seems both preposterously overbroad as a policy matter (since it covers all intelligence-related information regardless of whether it is classified, sensitive, or in any other way confidential) and unlikely to actually alleviate the purported problem (since there are already criminal statutes that prohibit the leaks that appear to be behind the Directive). But in this short post, I want to consider whether the Directive might also raise First Amendment questions, insofar as it restricts the ability of most IC employees to speak to the press even with regard to non-secret intelligence matters.

To make a long story short, although I think it’s antithetical to the purpose of the First Amendment, I very much doubt that it violates the First Amendment, thanks entirely to the Supreme Court’s 2006 decision in Garcetti v. Ceballos. There, writing for a 5-4 majority, Justice Kennedy held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Effectively vitiating a 1968 Supreme Court decision that had dictated the balancing of interests in such cases, the Ceballos majority held that the First Amendment categorically does not apply to public employee speech that is part of their duties. And although Justice Kennedy stressed that “[w]e . . . have no occasion to articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate,” the majority opinion was fairly clear that its holding reached any and all speech that a public employee could not have engaged in solely as a private citizen–i.e., any and all speech that he could only undertake because of his professional duties.

As I’ve explained previously, Ceballos thereby imposes a very high bar to any First Amendment protections for government employees in the national security field, since it is unlikely (albeit not unfathomable) that most of their putatively protected speech would not have been possible but for their public employment. Applying Ceballos specifically to Directive 119 would, in my view, produce a largely similar result, especially where classified or otherwise sensitive intelligence information is concerned. Although an individual could certainly argue that Ceballos doesn’t cover an IC employee’s ability to discuss matters that are already in the public domain with a reporter, even the more permissive Pickering standard (which Ceballos replaced) would only protect such speech if its content were of sufficient public importance to outweigh the government’s interest in proscribing it. At least with regard to information already in the public domain, it’s hard to conceive of a fact pattern that would trigger such protection.

That’s not to condone Directive 119 as a matter of policy, or to suggest that Congress shouldn’t consider legislation that more appropriately protects the right of government employees to speak to the public on matters of public concern that are already in the public domain. But if the question is whether Directive 119 can be challenged on First Amendment grounds, I fear that such a challenge would necessarily fail.