The U.S. Department of Justice's internet email policy, put into effect in November of 1998, ostensibly allows employees to use email for personal use, but prohibits them from any mention of religion.

Government employees, unlike employees in the private sector, receive constitutional protections. Although there are certain governmental interests that must be taken into account when upholding the rights of government employees, generally, government employees are entitled to constitutional protections such as freedom of speech, free exercise of religion, and due process.

So it comes as a surprise to discover that the Department of Justice has a policy in place that flagrantly violates its employees' freedom of religion and freedom of speech, and probably Title VII of the Civil Rights Act of 1964 which requires government to accommodate the religious beliefs of its employees. The DOJ's internet email policy, put into effect in November of 1998, ostensibly allows employees to use email for personal use, but prohibits them from any mention of religion. "The internet should not be used to send emails containing religious messages, religious symbols, or religious greetings (users are identified as Department employees and the government may not be involved in the establishment of religion)."

The policy contains a few other restrictions on speech, including restrictions on racial, ethnic, and gender slurs. Some of these other restrictions may also be questionable. The religious restriction clearly goes well beyond the Establishment Clause, intruding onto the Free Exercise and Free Speech clauses. The First Amendment provides in part, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech."

Communication by government employees on an issue of "public concern" is protected by the Free Speech clause. Religion and politics are traditionally areas of public concern, and the courts have held that an employee's personal interest in the topic does not take it out of the realm of "public concern."

Speech is protected in a "public forum" or a place the government has designated as a public forum. Internet email is probably considered a public forum. For example, if an employee subscribes to an egroups discussion list to chat about religion, any email he or she posts to that list are probably archived on egroups.com and retrievable by the public. Even if email is not considered a public forum, it would probably not stand up to the lesser level of scrutiny applied to non-public forums. That standard requires regulations to be viewpoint neutral and "reasonable." This regulation is not viewpoint neutral and would not stand up to the reasonableness test.

When weighing the Free Speech rights of government employees against governmental interests, the courts are extremely hesitant to uphold government policies that constitute "viewpoint discrimination." The DOJ's policy discriminates against viewpoints from a religious perspective. Consider an email discussion debating the merits of the death penalty: an employee who believes the death penalty is wrong because the Ten Commandments prohibit killing would not be allowed to express his viewpoint, whereas a non-religious argument addressing the issue would be acceptable. Regardless, the Supreme Court in Rosenberger v. University of Virginia held that viewpoint discrimination against several types of speech was equally as unconstitutional as discrimination against one.

Recent case law has held that the government's burden when seeking to justify a broad deterrent on speech that affects many employees is greater than when it is disciplining a single employee. There also must be some showing that members of the public or other employees have complained.

Just as egregious a violation is the infringement on the Freedom of Religion clause. The Supreme Court has held that any regulation targeting religion must have a compelling governmental interest behind it and must be narrowly tailored to its achievement. There are many problems with this blanket prohibition on religious emails. It is overly broad; it would prohibit an email from an employee to his mother saying, "I'll meet you at Bible Study tonight." Or would it? The definition of "religious message" is too vague. Another problem is it puts government in the position of deciding what constitutes religion, which the courts have said is not government's role. Does mentioning the Reverend Jesse Jackson in an email constitute a "religious message"? Does addressing school vouchers constitute a "religious message"?

Although the Religious Freedom Restoration Act was struck down by the Supreme Court in City of Boerne v. Flores, as being an unconstitutional mandate by Congress to the states, it is not applicable here. RFRA applied the compelling governmental interest test to neutral governmental laws of general applicability, that only incidentally burdened religion. The DOJ's policy is not neutral, it specifically prohibits religious emails. The Supreme Court has made it clear that the stricter standard would continue to apply to regulations that specifically target religion.

The DOJ's policy needs to be changed. The State of Texas has an email policy that is favored by many private companies. It provides in part, "when an employee sends a personal e-mail, especially if the content of the e-mail could be interpreted as an official agency statement, the employee should use the following disclaimer at the end of the message: This contains the thoughts and opinions of (employee name) and does not represent official (agency name) policy." Another option which many companies use, is to requiire employees to use a non work account to send personal emails, such as hotmail.com, or better yet, hushmail.com, which uses a higher level of security.

Maybe change in the DOJ policy will come directly from the top. John Ashcroft, now the new head of the Department of Justice, is known for sending out emails from work which contain recipes and Bible verses.