Volume 43, Issue 2 (Spring 2025)
By Eli Scher-Zagier*
Millions of federal employees face restrictions that silence their speech about workplace sexual misconduct, all in the name of national security. Information controls, non-disclosure agreements (“NDAs”), and physical workspaces create an architecture of secrecy that is concealing sexual misconduct in the federal government, hindering effective responses, harming national security, and exposing employees to coercion by foreign governments and criminals.
Drawing on court filings, government documents, and interviews with federal employees, this Note sheds new light on these silencing mechanisms. As the federal workforce is remade into a national security workforce, these mechanisms are spreading throughout the government and creating barriers to sexual misconduct accountability.
Yet there is a path forward. Adopted in 2022, as the silencing force of NDAs became clear, the Speak Out Act voids nearly all NDAs that cover sexual misconduct. Courts should recognize that the Act’s sweeping scope reaches national security NDAs, and the executive and legislative branches should implement express carveouts to national security NDAs for sexual misconduct disclosures. Nearly a decade ago, the federal judiciary adopted similar changes to its confidentiality requirements for judicial employees, exempting all misconduct disclosures, without any negative effect. In the national security sphere too, confidentiality and accountability can—and must—go together.
*Yale Law School, J.D., 2025. This paper has lasted most of my time in law school. I am lucky to have had more than a dozen people—truly a village—who helped make this piece better, and I am thankful for their time and thoughts. Professors Oona Hathaway and Christine Jolls supervised much of the writing and provided extensive feedback at various stages of this project. Professor Tom Tyler offered methodological guidance. Alexandra Brodsky, Margo Darragh, Fiona Furnari, Patrick Hoerle, and Nicolas Madan read lengthy drafts and provided invaluable comments at critical points. Luke Cuomo, Richard Peay, Gabriel Klapholz, Seungmin Park, Atia Ahmed, Jack Sollows, and other editors of the Yale Law & Policy Review shepherded this piece to publication and provided incisive, thoughtful edits. Most importantly, to those who participated in interviews or completed a survey, sometimes anonymously: you have my immense gratitude. Thank you for trusting me with your story in pursuit of a brighter future.
