HARRISBURG — A national free speech group is threatening to sue over Gov. Josh Shapiro’s policy banning state employees from engaging in “scandalous or disgraceful” behavior amid widespread protests against the war in Gaza.
The Philadelphia-based Foundation for Individual Rights and Expression, or FIRE, is threatening litigation after contacting Shapiro’s office — with no response — about the controversial policy, first reported by Spotlight PA earlier this year.
The policy heightened fears among civil rights advocates and pro-Palestinian and Muslim American groups that employees who express opinions that differ from the Democratic governor’s stance on the war could be unfairly punished.
“Free speech is the keystone of our democracy, and today it’s threatened in the Keystone State by Governor Shapiro,” said Aaron Terr, FIRE’s director of public advocacy, in a statement. “No elected official can slap a gag order like this on state workers. This is an abuse of power, and we’re looking forward to challenging this flagrant government overstep in court.”
When the policy was first enacted through an executive order, the Shapiro administration cited the need for “moral clarity” at a time of rising antisemitic and Islamophobic speech.
In an email to cabinet secretaries in early May announcing it, Neil Weaver, who heads Shapiro’s Office of Administration, wrote: “The administration supports free speech, consistent with the First Amendment, but that speech may never incite violence, encourage people to violate the law, or harass others.”
The executive order did not define unacceptable conduct, but it did say that anyone who fails to comply with it could face penalties ranging from a reprimand to loss of employment.
The vagueness of the order left some civil liberties advocates worried that it could violate free speech protections enshrined in the U.S. Constitution. They also said it could result in a lawsuit if someone were to be fired for violating it.
Manuel Bonder, Shapiro’s spokesperson, did not reply to a request for comment on FIRE’s letter or legal threat. Previously, he told Spotlight PA that the new language was part of an effort to modernize the state’s code of conduct and that any alleged misconduct allegations will be “evaluated individually and on their own merits.”
Daniel Burnett, FIRE’s senior director of communications, said the group wrote a letter to Shapiro’s office early last month in which it argued the policy could lead to litigation, and offered to help amend the language to avoid any potential First Amendment concerns.
“They did not respond,” Burnett said.
In a statement Monday, the group issued a call for state employees concerned about the policy to contact FIRE, and said it “looks forward to challenging [the executive order] in court to defend public workers’ crucial First Amendment rights.”
FIRE, founded in 1999, initially focused on defending free speech on college campuses, but has expanded in recent years to free expression beyond classrooms.
According to its most recent tax filing with the Internal Revenue Service, the nonprofit reported spending $34.2 million in 2022, including nearly $3.3 million on litigation expenses involving court cases across the country. It spent another $17 million on public awareness campaigns, including through social media, podcasts, and other platforms.
“Our litigation project is growing into a premier public-interest law firm for free expression,” FIRE wrote in its 2022 tax filing. “In addition to reviewing each and every case submission we receive, FIRE attorneys proactively seek out plaintiffs to file suits with the potential to secure lasting legal precedents, major public-policy reform, or clear cultural impact.”
According to a search of IRS records, the group has received some of its funding over the years from conservative-leaning groups, including ones affiliated with the Lynde & Harry Bradley Foundation and the John William Pope Foundation, both of which advocate for limited government and other conservative principles.
FIRE has also received funding from the Sarah Scaife Foundation and the Charles Koch Institute, according to a 2016 article in the New York Times.