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The federal law barring political activity in government offices also prohibits the display of political posters on designated union bulletin boards, the 2nd U.S. Circuit Court of Appeals has ruled. The appellate court’s decision Monday reverses Southern District Judge Alvin K. Hellerstein’s ruling last October that the hanging of such a poster by New York-based U.S. Postal Service employees during the 2000 presidential election campaign did not constitute political activity and was in any case protected speech under the First Amendment. “[T]he pertinent regulations define political activity in a way that clearly includes the [American Postal Workers Union's] poster,” 2nd Circuit Judge Ralph K. Winter wrote for the unanimous appellate panel in Burrus v. Vegliante, 02-6257. The panel, which also included 2nd Circuit Judge Jos� A. Cabranes and Southern District Judge Barbara S. Jones, sitting by designation, rejected constitutional arguments by the postal workers’ union that such bulletin boards were limited public forums subject to First Amendment protection. Finding that the interior post office work areas are nonpublic forums, the appellate court also noted that union bulletin boards are open only to the union and were restricted by the union to “suitable notices and literature.” This restriction “by any definition surely excludes material posted in violation of federal law,” the court wrote. Political activity in federal workplaces is governed by the Hatch Act, which was adopted in 1939 to limit the political activities of federal employees with the goals of preventing political coercion of federal employees and foreclosing the use of the civil service to build political machines. Until 1993, federal employees were barred both in and out of the workplace from taking active roles in political management or political campaigns. The Hatch Act was amended in 1993 to permit government workers, with a number of exceptions, to take part in political activities off duty while maintaining on-duty restrictions. The political posters at issue were created by the American Postal Workers Union and mailed to 27,000 union members. The posters compared the positions of then-Vice President Albert H. Gore and then-Texas Governor George W. Bush, suggesting that Gore, a Democrat, held positions more favorable to postal workers. The Postal Service asked the union in October 2000 to remove the posters as possible violations of the Hatch Act. Union President William Burros refused and sued after the Postal Service issued an “advisory opinion” suggesting that employees who hung posters could be disciplined. The union conceded that posters were placed on bulletin boards by on-duty postal employees, but argued that such actions were not prohibited political activity under either the original or amended version of the Hatch Act. Judge Hellerstein agreed, relying on earlier federal decisions holding that federal employees were barred only from political activity conducted in coordination with political parties or candidates. The appeals panel noted that pre-1993 Hatch Act implementing regulations had in fact listed as political activities the displaying of political pictures and badges and other activities not generally undertaken in coordination with candidates or parties. The court also found that the legislative record of the 1993 amendment clearly showed Congress’ intent to restrict on-duty political displays. Daryl J. Anderson of Washington, D.C.’s O’Donnell, Schwartz & Anderson, who represented the postal workers union, expressed disappointment at the appellate court’s ruling, saying the decision may be a step back for the First Amendment rights of federal workers. “The whole purpose of the Hatch Act is to restrict the First Amendment rights of certain individuals,” he said. “Because of that, it should be construed narrowly.” The postal service was represented by Southern District Assistant U.S. Attorney David J. Kennedy. The U.S. Attorney’s Office had no comment.

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