The Justice Department is reviewing the conduct of an employee who helped chase Homeland Security Secretary Kirstjen Nielsen from a Mexican restaurant on Tuesday, but First Amendment scholars say that she may be immune from workplace consequences.
Allison Hrabar, a Justice Department paralegal specialist and member of the Democratic Socialists of America, helped organize a dozen-person DSA-led contingent that chanted “shame” at Nielsen until she left MXDC Cocina Mexicana.
Hrabar came under intense scrutiny following the downtown D.C. protest, and political opponents demanded that she be fired for protesting Nielsen’s role in separating suspected illegal immigrants from their children — a policy President Trump partially reversed Wednesday.
[Related: Who are the protesters who crashed Kirstjen Nielsen’s dinner and what are they planning next?]
Hrabar told the Washignton Examiner that as of about noon Thursday, she had not been disciplined. Asked if she still had a job, Hrabar said in a text message: “Yes! Currently at a team lunch.”
A Justice Department official said, however, that Hrabar’s conduct remains under internal review.
Experts say Hrabar is probably in the clear, though analysis depends on the legality of her protest and whether the restaurant requests charges for trespassing or disturbing the peace. Messages left with the business and its celebrity chef Todd English were not returned.
Some complexity is added to the analysis because Hrabar allegedly posted political messages on Twitter during business hours, including, “Keeping families together in jail is not an acceptable solution.”
University of Chicago law professor Geoffrey Stone said the Hatch Act restricts the political rights of federal workers. But he also said, “I do not think there is any basis for firing her that would be consistent with the First Amendment.”
“If she is expressly supporting a political candidate, there could be a Hatch Act issue. But if she’s just expressing her views about public issues, she is protected by the First Amendment,” he said.
Illegal conduct could be grounds for firing, but Stone said that also doesn’t appear to apply. “If she was participating in behavior that constituted a breach of the peace or a trespass — for example, if the store owner ordered her to leave and she refused to do so — that would be unlawful, but so far as I’m aware there was nothing like that here,” he said.
“A public employee who engages in speech activity that substantially undermines her ability to do her job can be dismissed, consistent with the First Amendment, but nothing in this situation seems to me to fall within that doctrine,” Stone added.
University of Minnesota law professor Heidi Kitrosser pointed to a 1987 U.S. Supreme Court ruling that a Texas government employee was constitutionally entitled to have a personal conversation celebrating the shooting of President Ronald Reagan, when she turned to a coworker and said, “I hope if they go for him again, they get him.”
“The DOJ might have stronger case there about workplace disruption, but she’d still have strong counterarguments,” Kitrosser said. “If I were the paralegal and I found myself in trouble over on-the-job tweets I’d likely start with that case.”
During a conversation with the Washington Examiner on Wednesday, Hrabar said that she believed her conduct was protected by the First Amendment. She also said that she was a member of a labor union, though she did not specify which one.
“It’s well-established that individuals don’t surrender their First Amendment rights when they become federal employees,” said Cheston McGuire, press secretary of the American Federation of Government Employees, the largest union representing federal workers. “This is especially so when they are speaking outside of the workplace on matters of obvious public concern.”
Hrabar isn’t on AFGE’s membership rolls.
Although many scholars said Hrabar likely is in the clear, there remains conceivable grounds to boot her.
“If charges are brought, Hrabar may find the First Amendment is less protective than she assumed,” George Washington University law professor Jonathan Turley wrote in a blog post.
“The legality of the protest is key,” Turley said in an email to the Washington Examiner. “Before addressing the more difficult issues [about] speech content, there is the threshold question of the legality of the protest.”
Regarding her tweets, Turley said federal workers “are not allowed to support or oppose a political party or candidate for a partisan political office or partisan political group while at work or wearing a uniform,” meaning that “if she advocated for the socialist party or made social media protests during work hours, she could have serious ramifications.”
It’s unclear if any of Hrabar’s social media posts directly support or oppose a political party or candidate. She made her Twitter feed private on Wednesday as public scrutiny mounted.
Hrabar told the Washington Examiner on Wednesday that “we think it’s important to put ourselves on the line” and that “it feels really good to confront people who are actually responsible” for policies she opposes.
“If you see these people in public, you should remind them that they shouldn’t have peace,” she said. “We aren’t the only ones who can do this. Anyone who sees Kirstjen Nielsen at dinner, anyone who sees anyone who works at DHS and ICE at dinner can confront them like this, and that’s what we hope this will inspire people to do.”
[Also read: Tammy Duckworth calls on Kirstjen Nielsen to resign for enforcing Trump’s zero tolerance immigration policy]
