Shapiro's policies draw lawsuit threat from free speech group • Spotlight PA

HARRISBURG – A statewide free speech advocacy group is threatening to sue Gov. Josh Shapiro for 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 (FIRE) is threatening legal action after reaching out to Shapiro's office about the controversial policy, which Spotlight PA first reported on earlier this year, without receiving a response.

The move raised concerns among civil rights activists and pro-Palestinian and Muslim-American groups that staff members who expressed different views on the war than the Democratic governor could be unfairly punished.

“Free speech is the cornerstone of our democracy and today it is under threat in the Keystone State by Governor Shapiro,” Aaron Terr, FIRE's director of public advocacy, said in a statement. “No elected official can impose such a duty of silence on public employees. This is an abuse of power and we look forward to challenging this blatant violation of government authority in court.”

When this policy first came into effect by decree, the Shapiro administration cited the need for “moral clarity” at a time of increasing anti-Semitic and Islamophobic speech.

Neil Weaver, head of Shapiro's administrative office, announced this in an email to cabinet secretaries in early May: “The government supports free speech in accordance with the First Amendment to the Constitution, but such speech must never incite violence, encourage people to break the law, or harass others.”

The implementing regulation did not define unacceptable behaviour, but it did indicate that anyone who did not comply would face penalties ranging from a reprimand to loss of employment.

The vagueness of the order has raised concerns among some civil rights activists that it could violate free speech rights enshrined in the U.S. Constitution. They also said that firing someone for violating the law could result in a lawsuit.

Manuel Bonder, Shapiro's spokesman, did not respond to a request for comment on FIRE's letter or legal threat. He previously told Spotlight PA that the new language was part of an effort to modernize the state's code of conduct and that all alleged allegations of misconduct were “evaluated individually and on their own merits.”

Daniel Burnett, FIRE's senior communications director, said the group wrote a letter to Shapiro's office early last month arguing the policy could lead to litigation and offering to help change the language to avoid any potential First Amendment concerns.

“They didn’t respond,” Burnett said.

In a statement Monday, the group urged public officials concerned about the policy to contact FIRE and said it “looks forward to the challenge [the executive order] in court to defend the crucial First Amendment rights of public employees.”

Founded in 1999, FIRE initially focused on defending free speech on college campuses, but in recent years has expanded its activities to include free expression outside the classroom.

According to its most recent tax return with the Internal Revenue Service, the nonprofit reported $34.2 million in expenses in 2022, including nearly $3.3 million in litigation costs related to court cases across the country. Another $17 million was spent on educational campaigns, including through social media, podcasts and other platforms.

“Our litigation practice is evolving into a leading public interest and free speech law firm,” FIRE wrote in its 2022 fiscal year filing. “In addition to reviewing every single case proposal we receive, FIRE attorneys proactively seek plaintiffs to bring lawsuits that have the potential to create lasting precedents, important public policy reforms, 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 those affiliated with the Lynde & Harry Bradley Foundation and the John William Pope Foundation, both of which support limited government and other conservative principles.

According to a 2016 New York Times article, FIRE has also received funding from the Sarah Scaife Foundation and the Charles Koch Institute.

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