Federal workers get right to take honorariums Decision leaves ban on Congress intact

March 20, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- Federal government workers gained a new constitutional right yesterday -- to accept pay for making speeches and writing articles on their own time. But they will not be able to start collecting right away.

A federal judge struck down a clause in a 1989 law that banned all fees for much of the outside speaking and writing that federal employees could do. Another part of the law, forbidding members of Congress to accept honorariums, was left intact.

U.S. District Judge Thomas P. Jackson ruled that, even though the law left federal workers free to speak and write for nothing, the Constitution protects the right to receive money as an incentive to expression.

Under Judge Jackson's decision, the government could no longer enforce the anti-fee law against employees of the executive branch. But the judge said he would not enforce his decision yet so the government would have a chance to appeal.

The delay means that federal workers can be offered fees, but anything they get paid will have to be put in escrow until after the legal fight ends.

Gregory O'Duden, chief legal aide to the National Treasury Employees Union, which is involved in the fight, said Judge Jackson would be asked to let his ruling take effect promptly.

It is unclear whether the federal government will appeal the ruling. Mr. O'Duden said that the government, in fact, has been supporting efforts to get Congress to reform the anti-fee law.

A bill to give federal workers the same right has been stalled in Congress, apparently in a dispute over whether the honorarium ban should remain intact for Congress' own employees.

Under the 1989 law, members of Congress and employees of all three branches of government were forbidden to accept any money or gifts for expressing themselves in non-government activities, including making speeches, conducting seminars, presenting papers or writing non-fiction articles.

The law did allow federal workers to accept money for artistic or sporting "demonstrations," for acting in plays or for leading worship services. It also allowed them to write fiction, poems, song lyrics or scripts for movies or plays.

While workers could have their travel expenses reimbursed if they made a speech, led a seminar or wrote a conference paper, they could not receive money for expenses such as buying a computer, making telephone calls or buying postage or supplies.

Among the federal workers who joined in challenging the constitutionality of the ban on honorariums for speeches and articles were a nuclear agency lawyer who writes on the side about Russian history, a Navy electronics technician who writes about Civil War-era vessels, a microbiologist who reviews dance performances for the press and a government broadcast editor who writes about global economics.

Judge Jackson struck down the fee ban because, he said, it puts a "financial penalty" on exercising free speech rights. While he conceded that federal workers may have to give up some of their free speech rights to get or keep their jobs in government, he said Congress could only go so far to restrict those rights as it had to go to protect the government's interest.

Congress did have power to act, the judge said, to end any impression that someone could buy government favors by paying government employees for speaking or writing. But, he noted, the law was not limited to speeches or articles related to the employees' job or agency.

And, he added, Congress singled out only some kinds of expression as having to be done without pay and thus did not tailor the law to the problem it had foreseen.

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