Wyoming Agency Will Retain Unconstitutional Personnel Rule

In late September I submitted comments to the Wyoming Department of Administration and Information ("A&I") opposing two proposed changes to the State of Wyoming Personnel Rules. My memo discussed two vague and overbroad provisions, one which could lead to unconstitutional abridgements of free speech and the other which unequivocally punished applicants for merely associating with people who say the wrong things about the government:

(a) Applications may be rejected, and/or applicants refused further consideration, examination, or appointment for any of the following reasons:
* * * *

(xiii) Applicant supports and/or belongs to any organization which advocates illegal overthrow of the government of the United State [sic] and/or the State of Wyoming;

I recommended striking the (a)(xiii) provision entirely. Yesterday, A&I released its responses to comments in a summary table, including the following:

(Numbered brackets added to differentiate request and responses over the section)

I will address A&I's response in order.

"This provision has been in the personnel rules for many years."

Likewise, the United States Supreme Court ruled decades ago—in the 1967 case Keyishian v. Board of Regents, to be exact—that a New York law barring the employment of university faculty "who advocate[] the overthrow of the government by force, violence or any unlawful means . . . or organize[] or join[] any society or group of persons advocating such doctrine" was unconstitutional. Rejecting applicants who specifically advocate for the illegal overthrow of the government may pass constitutional muster, but guilt-by-association does not.

"The current standardized applications do not ask about applicant's political affiliations, pursuant to Chapter 1, Section 14(e)(i)."

This is a sound practice, but in the information age it has lost its relevance. As I discuss in the memo, merely sharing a link on Facebook or Twitter or a blog from an organization that "advocates illegal overthrow of the government" may be interpreted as "support" for that organization. Discovering this requires no input from the applicant, and this regulation opens the door to state agencies to make such inquiries (that is, to use Google).

"A&I HRD is also not aware of any recent actions for declaratory or injunctive relief by applicants that were rejected for subversive advocacy."

Consensus does not inform constitutional rights, and the chill of this regulation on persons who attend "subversive" meetings or read and share "subversive" literature—all without any particular desire or intent to overthrow the government—cannot be quantified.

"The evaluation of such applicants would also have to occur on a case-by-case basis."

With a regulation such as this, where the Supreme Court has already ruled that under no circumstances is it permissible to use mere association with speech and beliefs as the basis for disqualification, case-by-case is no defense. Nevertheless, "case-by-case" is infecting First Amendment law with shocking efficiency. Indeed, the Federal Election Commission has successfully argued that a "case-by-case" approach to certain regulations mitigates the danger of unconstitutional vagueness and overbreadth. I believe the contrary that case-by-case, in fact, heightens vagueness and overbreadth. It is no relief to applicants for state employment that their affiliations may or may not be used against them. That is, in fact, the very reason laws and regulations must be understandable: to avoid arbitrary and discriminatory enforcement.

"A&I HRD will gather additional information, and consider striking or modifying this provision with the next rule change."

It's baffling how much more information A&I needs beyond the First Amendment and the Supreme Court's ruling from 1967, but I appreciate that the matter is not entirely settled at the agency.

Sadly, it's a relatively safe bet that A&I's unconstitutional regulation will go unchallenged in court. Few people who associate with bona fide communists, militant fascists or any other unequivocally anti-government group will apply for state employment in Wyoming, and even then they will probably keep quiet about their associations. To establish standing to challenge the regulation, one might have to disclose his affiliations and—if he was actually rejected for state employment—possibly become mired in a factual dispute about why, exactly, he was rejected. (This interview with Harry Keyishian, who brought the 1967 lawsuit, details how fortunate he was to be unequivocally threatened by a "loyalty oath" in New York.)

Having said that, we must remember that Wyoming agency regulations are not law and must be approved by the legislature. Though that practice is often salutary, this may be an excellent opportunity for the Wyoming Legislature to remedy an unconstitutional provision and consider the broader implications of Wyoming's creeping administrative state.