Thurgood Marshall Federal Judiciary Building in Washington, D.C. (Phoro: Diego M. Radzinschi/ALM)

New rules restricting political activity by administrative employees of the federal judiciary may soon be challenged in court by workers who claim their First Amendment rights are threatened.

“I anticipate litigation,” said Scott Michelman, senior staff attorney at the Washington office of the American Civil Liberties Union Foundation.

On behalf of two employees, Michelman wrote a letter last month to James Duff, director of the Administrative Office of the U.S. Courts, asking that the changes in the office's code of conduct, which took effect March 1, be rescinded.

The employees, Lisa Guffey and Christine Smith, work in the federal defender services office in administrative and cybersecurity jobs, respectively.

The provision prohibits “partisan political activity” by such employees, including expressing opinions about political parties or candidates on social media, wearing partisan buttons and making contributions to political parties or candidates.

“The political activities restricted are at the heart of what the First Amendment protects,” Michelman wrote, citing Supreme Court precedents protecting campaign-related speech. Because of the nature of their jobs, he asserted, the employees have no influence on the outcome of federal court cases. Therefore, he said, their political activity would not affect the integrity of the judiciary and should not be prohibited.

Duff defended the policy change in a letter to Michelman. He said it was a matter of applying an already existing provision on political activity that is “less stringent” than the code for judges to “all employees” at the administrative office except for himself and other top officials.

The provision in fact encourages civic engagement, Duff said, but limiting partisan political activity throughout the office is “necessary to maintain the public's confidence in the judiciary's work.” He added that “the revised AO code of conduct appropriately balances the First Amendment right of employees to comment on matters of public concern with the compelling public interest in preserving the public's confidence in the integrity of the federal judiciary.”

Michelman said the letter “does not take my clients' concerns at all seriously,” because it does not give the proper weight to their First Amendment rights in contrast to the minimal or non-existent impact on the judiciary. “I suspect the courts will see it differently” from the way Duff described the balance, Michelman said. A spokesman for the Administrative Office declined comment.