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Sanjour v. EPA

Citation: 23 ELR 20587
No. No. 92-5123, 984 F.2d 434/(D.C. Cir., 01/29/1993)

The court holds that an Office of Government Ethics' (OGE's) regulation allowing federal employees to accept reimbursement for expenses incurred in giving "official" speeches, but not "unofficial" speeches, is valid on its face under the First Amendment. The court first holds that the proper standard of review is a deferential balancing test rather than a strict scrutiny standard, because strict scrutiny is not mandated for all cases regarding financial disincentives on speech, a balancing test may be applied even where a regulation affects the speech of nonfederal employees, and use of a balancing test is possible in cases involving content-based restrictions on speech. The court holds that the OGE's regulation is neither facially content-based nor viewpoint-based, and the governmental interest in avoiding the appearance of impropriety is legitimate. Moreover, any impacts caused by the regulation upon the speech of federal employees is incidental to the government's interest. Finally, the court holds that the regulation is narrowly tailored to serve the government's compelling interest, because the OGE's regulation applies only where federal employees have received benefits. Applying the balancing test, the interest of federal employees in receiving compensation for their unofficial speech is moderate when compared to the government's compelling interest in preventing the appearance of impropriety. Moreover, the employees did not show that the regulation is underinclusive. Nonetheless, even if it were underinclusive, it would be valid, because the government's purpose was not the suppression of speech, and its ban on reimbursement furthers its proffered interest.

Counsel for Appellants
Stephen M. Kohn
Kohn, Kohn & Colapinto
517 Florida Ave. NW, Washington DC 20001
(202) 234-4663

Counsel for Appellees
Michael J. Singer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before WALD, SILBERMAN, and SENTELLE, Circuit Judges.