Christopher “Casey” Cooper testifies at his confirmation hearing in 2013. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL

A Washington federal judge on Wednesday ordered the Administrative Office of the U.S. Courts not to enforce a code of conduct aimed at restricting political activities by roughly 1,000 rank-and-file employees of the agency, which provides centralized support to the judiciary.

In a memorandum opinion supporting a preliminary injunction, U.S. District Judge Christopher Cooper said he recognized the office's goal of maintaining confidence in the integrity and neutrality of the federal judiciary.

“The question is whether that very legitimate concern outweighs the code's significant burden on the employees' speech,” he said. “The court concludes that, for most of the challenged restrictions, it does not.”

Two employees in the Defender Services Office of the Washington-based agency went to court, with the help of the American Civil Liberties Union, to challenge the new rules promulgated in March.

The rules barred wearing political buttons, showing lawn signs, opining on candidates on social media or contributing funds to candidates, among other activities. The rules were akin to restrictions imposed on courthouse employees and those who worked directly with judges, and reflected agency director James Duff's desire for greater uniformity throughout all segments of the judiciary.

But Cooper drew a distinction between Administrative Office employees and those who work closely with judges around the country, in terms of the political influence they might bring to bear on the judicial process. “Save for egregious malfeasance, an AO employee could not sway the outcome of a case if she tried,” Cooper wrote. “And there is no factual basis—certainly the government has not offered any—for thinking that the partisan political views of AO employees (whatever they may be) reflect those of judges.”

A spokesman for the Administrative Office declined to comment on the injunction in the case, titled Guffey and Smith v. Duff.

Scott Michelman, senior D.C. ACLU staff attorney, said in a statement: “Today's decision vindicates public employees' First Amendment rights to participate in the most important aspects of the political process. The court rightly recognized that the government cannot use the specter of potential corruption to prohibit core First Amendment activities.”

Cooper did single out two of the restrictions on political activities that he found appropriate even for AO workers, in part because they are also prohibited by the Hatch Act: organizing or managing political rallies or meetings, and driving voters to the polls on behalf of a party or candidate.

“Both restrictions target activity that involves not simply a personal display of partisan commitment, but rather an affirmative effort to enlist the partisan support of others,” Cooper wrote. “A member of the public could more plausibly view these two activities as evincing a partisan tie so durable that it could affect an AO employee's performance of her day-to-day duties.”

 

Cooper's ruling is posted below:

 

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Federal Judiciary Employees Plan Challenge to New Rules Limiting Political Activity