CDC gag order is fair game under First Amendment — and that’s scary

The First Amendment is on people’s minds again — yet nowhere to be found. Its absence has serious implications for freedom and democracy in the United States. 

Recently, Trump administration officials reportedly told employees of the Centers for Disease Control and Prevention not to use terms in 2018 budget documents that include words like “evidence-based,” “science-based,” “vulnerable,” “entitlement,” “diversity,” “transgender,” and “fetus.”

The CDC is part of the Department of Health and Human Services, whose mission is “to enhance the health and well-being of Americans.” Although the CDC disavows any official word ban, it has been reported that people inside the agency are afraid to do their jobs.

{mosads}Although reporting on this story has not mentioned the Constitution, Twitter is alight with common sense questions around banned speech and the First Amendment — that is, doesn’t the First Amendment protect the rights of scientists and researchers to use these very legitimate words?

The clear answer is no. And that’s troubling.

Compare the #TakeAKnee controversy this past fall, which sparked First Amendment outrage over football players’ “right” to kneel during the national anthem. It turns out that the players had no First Amendment right to kneel, because the government was not silencing their speech — team owners were. And the First Amendment does not bind private football team owners.

Although the government is behind the unofficial ban at the CDC, the First Amendment does not apply to that workplace, either. Government agents speaking in their official capacities do not get First Amendment protections. If career scientists are fired for writing uncensored documents, they have no First Amendment recourse. 

If this seems odd, it should. The First Amendment unqualifiedly bans any law “abridging the freedom of speech.” It is easy to conclude that barring federal employees from using words like “diversity” and “vulnerable” would abridge — or curtail — valid speech.

But there is a lot of speech that the government lawfully forbids. It is illegal to “express” oneself by harming someone else’s reputation, by falsely advertising a product or service, by stealing someone’s intellectual property, by depicting children in pornography, or by threatening the president’s life. Courts recognize that there are tradeoffs when it comes to both limiting and protecting speech. The analysis often boils down to whether the value of a particular kind of speech outweighs what is best for society. And this kind of balancing has produced a dizzying web of tests and considerations that courts must take into account in construing the term “abridging” under the First Amendment. 

When it comes to government workers’ official workplace speech, the Supreme Court has drawn a pretty bright line — it is not covered. The problem with the status quo is that, when the government starts banning words for what appears to be pure ideology, things can get scary.

In Eritrea, the most censored country world-wide, journalists from state-run news organizations live in fear of being arrested and jailed for doing their jobs. In Syria, reporters have been abducted and killed by backers of President Bashar al-Assad as well as by the ruthless Islamic State. And in 2016, American college student Otto Warmbier was arrested and sentenced to 15 years of hard labor after attempting to remove a propaganda poster from a hotel while visiting North Korea. He returned to the U.S. 17 months later in a comatose state, having suffered severe neurological injury, and died shortly thereafter at the age of 22. 

To a skeptical ear, stories of dictatorial regimes may sound hysterical when relayed in the context of the Trump administration — or that of America more generally. We have the First Amendment, after all, which protects our right to speak freely. North Koreans don’t.

What comes as surprise to some people is that the First Amendment doesn’t simply leap to the rescue when someone’s free speech at stake. A constitutional right only matters if the government tries to take it away. Nobody is bossing Trump around when it comes to his tweets (at least successfully). He certainly cannot be summarily fired with the stroke of a pink slip like a CDC researcher might be for using the science-based word, “fetus.” 

But if the First Amendment clearly tolerates a CDC ban, why does this digression into constitutional law even matter? Because at the end of the day, the Constitution is just a piece of paper. Much of its meaning has evolved — and will continue to evolve — through judicial decisions involving individual disputes over many years. As a consequence, constitutional “rights” may not work in the ways we might expect them to. Nor does the piece of paper hover over our political leaders as a bulwark against government control run amok. It is only as powerful as “We the People” insist that it be. When the government starts silencing scientists for reasons that have no apparent social benefit, therefore, we should all be worried — and vigilant.

Kimberly Wehle is a professor of Law at the University of Baltimore School of Law, former assistant United States attorney and associate independent counsel in the Whitewater Investigation and author of the forthcoming book, “The Outsourced Constitution: How Corporate Interests Are Killing Democracy.”