Can Trump Legally Censor CDC Words?

It’s fitting that the answer to this question traces to George Carlin, the iconoclastic comedian who coined seven dirty words (shit, m****f*****, tits, c***s*****, and others). After a radio station played his famous monologue, inspiring a 12 year old boy to share with his father, the dad filed a complaint against the broadcasting company for indecency. The FCC censured the radio station with a letter of reprimand. The radio station took the case to the Supreme Court and lost in F.C.C. v. Pacifica Foundation.

The Court required the FCC to demonstrate a compelling government interest in regulating these dirty words. The FCC argued that one compelling interest was shielding children from potentially offensive material, and second, ensuring that unwanted speech does not enter one’s home.

The Court also said that the FCC had the authority to prohibit such broadcasts during hours when children were likely to be among the audience. The ruling gave the FCC leeway to determine what constituted indecency in different contexts.

If it is true that the CDC cannot use words such as “diversity,” “fetus,” “transgender,” and “vulnerable,” it would present an unprecedented expansion of government censorship. The Trump administration could not meet the compelling interest test.  These words are not obscene or indecent-- or anything else that approaches a compelling interest.

Suppose the administration took a different tack by firing employees who used these words in official documents. This would trigger a different test under Pickering v. Bd. of Education. A high school teacher was fired for publishing a letter in the local newspaper that criticized the board for favoring sports over education.  
Pickering recognizes that public teachers do not relinquish First Amendment rights in their employment, but also enables a government employer to regulate the speech of its employees differently from citizens.  Courts must weigh the competing interests of public employees and their employers.

The Pickering test would not fit clearly this scenario. It says: “To arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."
To prevail, the administration would need to prove that its word ban promotes the efficiency of government operations. CDC employees be in the legally awkward position of arguing that the administration was denying their right to political expression. That’s because they don’t view these as political words but simply descriptive terms for their work—an area over which the government, as employer, as a presumption to regulate speech in the workplace.

Given the Orwellian nature of the Trump word ban, my educated guess is that courts would apply the Pickering balancing test in favor of an employee who would be disciplined. But given the wide deference that courts afford employers in this guess, my prediction is not a sure bet.

Finally, there is this possibility: A citizen might sue, claiming a First Amendment right to be free from political suppression of terms such as “fetus.” The Trump administration would face an uphill climb in defending a ban on a term that appears in regular and medical dictionaries.