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The Hatch Act is a law that was passed in 1939. It says that Cabinet employees as well as other non-presidential Executive Branch members cannot talk about candidate-specific issues among other things.

This seems like a clear violation of the First Amendment. But the Supreme Court disagrees with me, since that argument has been presented to it. Why hasn't the Hatch Act been determined to violate the First Amendment when it seems to clearly restrict speech?

Note: I looked up the law's constitutionality. The court's majority opinion was basically "it does not interfere with voting rights so it's OK."

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  • Related but distinct question: Why should public servants be apolitical?
    – MJ713
    Jul 30 at 18:53
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    Worth noting that Hatch act prohibitions are not that heavy handed for most US federal employees.. the majority fall in to a ‘less restricted’ category which primarily limits their participation in partisan political activities while on duty (though it also prohibits them from running for a partisan political office as well..) In practice, many US federal employees can and do participate in and express their ideas around politics outside of the scope of their official office osc.gov/Services/Pages/HatchAct-Federal.aspx#tabGroup12
    – John-M
    Jul 30 at 22:22
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    @John-M this is also why teachers cannot hold prayers at goverment schools. As agents of the state they are not allowed to express there religion while being active in that capacity
    – Neil Meyer
    Jul 30 at 22:33
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The Act's constitutionality was challenged in 1947 in United Public Workers v. Mitchell, and again in 1973 in United States Civil Service Commission v. National Association of Letter Carriers. In both cases, the Supreme Court decided that although the restrictions imposed by the Act on the free speech of federal employees infringe on their first amendment rights, this infringement is justified in order to maintain the smooth running of government - noting that Congress remained free to restate this balance if it so desired.

In 1947, a 'balancing test', also employed in 1882 in Ex parte Curtis, was used to weigh up "the extent of the guarantees of freedom against a congressional enactment to protect a democratic society against the supposed evil of political partisanship by classified employees of government". Justice Reed, in the majority opinion of the Court, wrote that "The conviction that an actively partisan governmental personnel threatens good administration has deepened since Ex parte Curtis", and that therefore the Hatch Act's infringement of free speech was justified.

In the 1973 case, an injunction was sought against the enforcement of the Act, on the grounds that the appellants' first amendment rights were being violated. The majority opinion rejecting this contained a similar argument - that although the Hatch Act restricts the speech of federal employees, this is necessary to ensure the smooth operation of the Government;

Until now, the judgment of Congress, the Executive, and the country appears to have been that partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly, elections are to play their proper part in representative government, and employees themselves are to be sufficiently free from improper influences. E.g., 84 Cong.Rec. 9598, 9603; 86 Cong.Rec. 2360, 2621, 2864, 9376. The restrictions so far imposed on federal employees are not aimed at particular parties, groups, or points of view, but apply equally to all partisan activities of the type described. They discriminate against no racial, ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere with or influence anyone's vote at the polls.

The Court's ruling on Pickering v. Board of Education was also mentioned, in which it was found that a balance should be arrived at "between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [government], as an employer, in promoting the efficiency of the public services it performs through its employees."

In weighing up this balancing act, the majority opinion, although acknowledging that Congress retains the right to strike a different balance if it so wishes, states:

We think the balance it has so far struck is sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act.

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    There's always a tough balancing act, because we don't want the government to infringe the rights of people, but the government is made up of people, so, restrictions on what the government can do restrict the people that make up the government. Jul 30 at 14:20
  • @JörgWMittag Ah, so you mean we should transition to an all-AI government? Jul 30 at 17:00
  • @AzorAhai AI are people too! Jul 30 at 19:12
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    @AzorAhai-him- Given the typical intelligence level of humans in government, injecting some actual intelligence into the system would have unknowable and unprecedented consequences.
    – alephzero
    Jul 30 at 20:32
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The government is allowed to revoke the rights of citizens under certain circumstances. You have the right to bear arms in the US, but if you are found guilty of domestic abuse you can have your right to bear arms revoked. This happened to Charlie Sheen.

This is also one of the ways the death penalty is defended. Yes, you do have the right to live, but if you choose to take another's life, the goverment revokes your right to live and it mechanism of revoking the right to live is known as the death penalty. Another example is how incarceration revokes your freedom to freely move.

This all must be done in a fair and just manner and has tons of ethical issues to consider, but the revoking of rights is not unheard of.

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I searched for the text of the act, and I found this: https://www.law.cornell.edu/uscode/text/5/7323

I did not see any actual consequences for violating the act mentioned, which implies that it is not a criminal statute. This article mainly lists loss of job as the consequence for violation, although it does mention a fine in one case.

The government is accorded more leeway when acting as an employer rather than a regulator:

[I]t cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.

Pickering v. Board of Education

This regulation being viewpoint-neutral further reduces the bar for it to be found constitutional.

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