GSA violated free speech, union alleges

A lawsuit filed last week by one of the largest federal employee unions against the General Services Administration charges that the agency violated the First Amendment when it denied the union a permit to hold a rally in New York City last August.

The National Treasury Employees Union says a GSA administrator told two union officials that the agency denied the permit because the rally, which was in protest of job losses and competitive sourcing initiatives at the Internal Revenue Service, conflicted with the administration's beliefs. If true, the administrator's remarks would make GSA's rejection of the permit unconstitutional. The First Amendment prohibits the government from silencing speech on the basis of its content.

"We believe they illegally restricted our access," said Colleen Kelley, president of NTEU. The lawsuit, filed Oct. 28, names GSA chief Stephen Perry and regional administrators Eileen Long-Chelales and John Scorcia, and describes the denial of a permit for permission to rally at 26 Federal Plaza outside the Jacob Javits Federal Building on Aug. 19.

GSA says the permit denial was legal and unrelated to the content of the rally. "We have a consistent policy: We do not grant permits to demonstrate at Federal Plaza… It's content-neutral," said John McCarthy, GSA spokesman.

NTEU said there is a history of holding protests at the plaza, however, it is not clear whether GSA has granted permits for rallies there since Sept. 11 when security was tightened in the area. There also is disagreement over whether the plaza area outside the federal building is owned by the city or the federal government. If the court considers the plaza federally owned and a nonpublic space, then the government has more leeway to restrict access, but it still cannot do so based on the viewpoint of the speakers.

"Even security concerns … will not authorize the government to exclude speakers just because of the viewpoint of their speech," said Geoffrey Stone, professor of law at the University of Chicago and author of Perilous Times: Free Speech in Wartime from The Sedition Act of 1798 to The War on Terrorism (W.W. Norton & Company, 2004).

NTEU's argument that the permit denial was content-based rests on the comments of Scorcia, an acting assistant regional administrator at GSA. According to the lawsuit, he first told Frank Heffler, president of NTEU Chapter 47, that the permit was denied because of security concerns, and then said it was because "it's not the administration's agenda to have a protest regarding contracting out." Scorcia made a similar statement to an NTEU attorney, the lawsuit stated.

GSA's McCarthy said he could not comment on specific quotes cited in the lawsuit.

NTEU's general counsel, Greg O'Duden, said he does not know how GSA will defend itself against Scorcia's quoted remarks, but that to him, the case seemed straightforward. "The basic principle of constitutional law is that the government cannot control access or make a decision based on the content of what a speaker is saying," he said.

Kelley said she believes GSA hoped the union would cancel the rally. Instead, it was held on a public sidewalk beyond the plaza. About 400 protesters, mostly employees of the IRS, gathered along with New York Democratic Reps. Joseph Crowley, Major Owens, Eliot Engel and Anthony Weiner to protest competitive sourcing, which has been a contentious issue between federal employee unions and the Bush administration.

"This is just another example of the Bush administration trying to squelch the opinions of those who disagree. I believe the GSA will lose in court because the U.S. Constitution is clear--you cannot suppress someone's First Amendment rights because their politics are not the same as yours," Engel said in a statement to Government Executive Wednesday.

NTEU added that any security concerns were worsened by the new sidewalk location. "When they pushed us out to the curb, we were getting in the way," Heffler said. "Talk about a security problem…"