The Knight Institute invites submissions for a spring symposium, “Permission to Speak Freely? Managing Government Employee Speech in a Democracy,” to be held at Columbia University on April 5, 2024. The symposium, organized in partnership with the Institute’s Senior Visiting Research Scholar Sam Lebovic, will explore the law and politics of public employee speech. A more detailed discussion of the theme of the symposium is below, followed by logistical information for those who wish to participate.
Description and Aims
In our polarized, paranoid politics, the speech of public employees is fraught as perhaps never before. During the Trump presidency, much hope and fear was invested in the notion of a “deep state” with the capacity, depending on one’s preferences, to either maintain or derail the legitimacy of the federal government. Leaks and rumor and background briefings—always a central form of U.S. politics—became ever-more charged sites of conflict: the New York Times ran a symptomatically infamous op-ed in which one anonymous insider declared themselves to be the “the resistance.” The war over the regulatory and administrative state, meanwhile, directly implicates the rights and political activity of the civil service—particularly in those branches ostensibly committed to the neutral production of knowledge. Public sector unions, now a bulwark of the labor movement, are likewise under assault, on the grounds that union dues implicate the speech rights of nonmember employees. And the culture wars, playing out particularly over discussions of race and gender in the classroom, directly implicate the speech acts of educators—by far the largest class of public employees in the nation.
Each of these domains has been subject to considerable controversy, as well as deep debate in many fields of academic inquiry. But they have not been treated as instances of a broader problem: how a modern, bureaucratized democracy should manage the speech of its government employees. The issues are complex, requiring the balancing of competing democratic values: transparency v autonomy; delegation v supervision; objectivity v diversity; tolerance of debate and disagreement v the need to reach some form of functional consensus for collective governance to continue. They require parsing the intersection of First Amendment law, administrative law, labor law, democratic theory, and the brute science of American political contestation.
This symposium will bring together an interdisciplinary group of experts to explore these problems. The stakes are significant. There are some 22 million public employees in the U.S.—to determine their speech rights is to determine the speech rights of a population twice as large as the entire population of Cuba or Greece or Hungary or Israel. To think holistically about the problems and politics of public employee speech offers an opportunity to clarify normative and doctrinal problems in vexed subfields of the law: academic freedom; whistleblowing and transparency; public sector employment and unions.
Such a conversation also promises to be generative, to shed light on two deeper problems of U.S. democratic life. The first is the legitimacy crisis of the administrative state. Since at least the New Deal, those seeking to legitimize the U.S. state have done so by seeking to place the bureaucracy outside of politics—by appealing to the expertise and objectivity of the bureaucrat, and by establishing elaborate rules and procedures to ensure neutrality. As the ongoing assault on the regulatory state reveals, they have not succeeded in protecting the bureaucracy from accusations that it is an undemocratic, elitist threat to the liberties of ‘ordinary’ Americans; such efforts to ensure procedural neutrality may also have eroded the political capacity to substantively govern. Rethinking the political speech of public sector employees may help us rethink the relationships between objectivity, expertise, and democratic governance, and thus the normative foundations of the modern state itself.
Second, rethinking the politics of public employee speech may provide a space to imagine a more realistic and robust role for the First Amendment in modern democratic society. Our philosophies of free speech are, by and large, anachronistic, rooted in a set of classically liberal assumptions about the opinions of autonomous individuals, the exchange of ideas in so-called free markets, and the self-righting processes of unregulated systems. For the past half-century, this vision of the First Amendment has been taken up with particular force by the libertarian right, and turned into a tool to wage war on the very possibility of administrative governance. In reaction, progressives have begun to retreat from their former embrace of First Amendment speech rights.
A central challenge today, therefore, is to find a way to delineate a philosophy and doctrine for the First Amendment that maximally protects civil liberties without destabilizing the very possibility of collective governance. The question of public employee speech rights is a particularly promising place to seek such a philosophy. The questions involved automatically preclude thinking in straightforwardly individualistic terms of the sort favored by abstract, neoliberal theories of the First Amendment, or by the classical liberalism of contract law. They require thinking less about the value of speech-acts to the speaker, and more about the social value of speech and the public’s right to knowledge; less about “marketplaces of ideas” and more about collectively produced and managed spaces for expressive activity. Cracking the riddle of speech in the administrative state may thus provide new ways to think about the problem of contemporary First Amendment rights more generally.
We welcome papers that take up the law and politics of public employee speech from any angle. Papers that compare these issues across differing doctrinal domains, differing national traditions, or different time periods are particularly welcome, as are papers that seek to shed new light on the following themes:
1) Public employee speech doctrine
At different moments in history, in different domains of governance, U.S. law and politics have sought to resolve the problems in the field by the application of a few simple doctrines. For much of the 20th century, for instance, public employment was considered a privilege, which meant that the granter of the privilege could attach whatever conditions to it they wished. (One “may have a constitutional right to talk politics,” as Oliver Wendell Holmes put it, “but [one] has no constitutional right to be a policeman.”) In some parts of the state—such as the national security branches—that is still the dominant approach today. Yet in others, we can see a growing tendency to emphasize the individual right to speech as the essential democratic virtue, as in the post-1960s cultural lionizing of the whistleblower.
Since Pickering (1968), courts have sought to balance the managerial prerogatives of the public employer to control their staff with the free speech rights of the employee as well as the public right to learn about their government. Garcetti, an early Roberts Court decision, tilted this balancing act strongly in favor of the managerial prerogative—essentially denying free speech rights to (most) public employees when speaking on matters relating to their employment. Controversial at the time, and since subject to some judicial narrowing, the Garcetti decision is ripe for re-examination, as is the entire balancing framework extending back to Pickering.
To what extent does effective civil service management require regulating the speech of individual employees? What are the democratic benefits of unfettered free speech? What are its costs? How do other bureaucracies in other democracies regulate their employees? If we think not about the rights of the speaker—as is encouraged by analogizing between the speech rights of public and private employees—but exclusively about the rights of the public to be informed about their government, how might our answers to these questions change?
The existence of whistleblowing statutes provided an essential legitimizing plank for the Garcetti decision’s truncated vision of First Amendment rights. One can certainly imagine arguing, as did the Garcetti majority, that a statutory framework is a more democratically legitimate way to preserve the public’s right to be informed than a court-protected right for the dissident employee. But a lot turns on the protections actually provided by the whistleblowing laws. To take an important case, the whistleblowing protections in the field of national security are paltry. So how effective are the whistleblowing statutes? What do we know, from both the history of the U.S. laws, and the examples of other nations, about the best ways to protect legitimate whistleblowing? What are the risks of rogue, or mistaken, whistleblowing? Do we want to incentivize whistleblowing, disincentivize it, or merely tolerate it? How do the laws of whistleblowing intersect with both cultural attitudes to whistleblowers and the sociology of the public sector to shape the likelihood, form, and practice of whistleblowing?
More broadly, when public employees engage in provocative, controversial, or offensive speech in their capacity as private citizens, can they be reprimanded or fired? Traditionally courts have ruled that they can—that the government interest in preserving its reputation is sufficient to overcome any interference with the speech rights of the employee. This may make sense—employers in the private sector retain a right to fire, after all; and it would be hard to delegate the power of law enforcement to a police officer who had expressed white supremacist views. But it is a little curious to justify such forms of political censorship by measuring the reputational blowback to the government—not only is this a highly subjective standard, it seems very similar to a recognition of the “heckler’s veto” that has been treated as anathema in the mainstreams of First Amendment jurisprudence.
In any case, in an era of heightened polarization and regular eruptions over offensive speech on social media platforms, off-duty expression is likely to become a site of political controversy. (As for instance, in the ongoing case of 12 Philadelphia police officers disciplined for “offensive, racist, and violent” Facebook posts. The district court initially dismissed their First Amendment complaint, but in June 2023, the Third Circuit Court of Appeals reversed (Fenico v City of Philadelphia, No.22-1326 (3d Cir. 2023)).
Under the pressure of increasing partisanship, norms of neutrality are fraying. The Hatch Act of 1939 established a broad framework to regulate the political activities of federal employees; in recent years, the Office of Special Counsel has recommended that Kellyanne Conway be fired for “persistent, notorious and deliberate Hatch Act violations” and given Biden Press Secretary Karine Jean-Pierre a warning for a single Hatch Act violation.[1] Reports of Oath Keepers employed by the Department of Homeland Security and the Border Patrol likewise raises new questions about the mechanisms used to screen public employees for political extremism, as well as an opportunity to learn from older debates about the Cold War era policing of political dissent and radicalism in the federal service.[2]
In all, foundational questions of neutrality, bureaucracy, and administrative governance are at stake. What are the democratic benefits of unfettered public employee speech? What are its costs? And does effective management of the public service actually require controlling either the off-duty or on-duty speech of public employees?
2) Educational and knowledge-producing institutions
The majority decision in Garcetti left space to treat “academic scholarship and classroom instruction” differently from other forms of employee-speech because they implicated “additional constitutional interests.” How to actually implement this academic freedom exemption has turned out to be tricky.
At the university level, a number of lower-court decisions have subsequently protected First Amendment rights for faculty members to speak and publish on their subjects of expertise, but courts have split in deciding whether faculty speech about university administration should also be exempt or should instead be governed by Garcetti. In 2022, the Sixth Circuit controversially ruled that a public university nondiscrimination policy requiring all professors to use students’ pronouns of choice violated a professor’s rights to free speech.
There are therefore, questions about the limits of academic freedom doctrine in the public sector, as well as about whether the right of academic freedom belongs primarily to the university as an institution or the employee as an individual. And these intersect with broader sociological questions. How is academic freedom institutionally and legally supported? In the U.S., it is enforced by professional standards and accreditation, in a mixed public-private economy. Elsewhere, in exclusively state educational economies, it is enforced via union contract. What lessons can we derive from its relative strength in these very different institutional formations?
Meanwhile, of course, the politics of education have become inflamed, as state legislatures seek to pass laws banning “critical race theory,” “divisive concepts,” and the like from their classrooms. (An early model for divisive concepts bans was the Trump administration Executive Order banning diversity training in federal agencies—one sign of the ways that public employee speech politics easily cross domains.) The coming years are primed to see serious judicial and political conflict over the contours of academic freedom and classroom regulation at both the secondary and tertiary level—making it important to clarify both normative and jurisprudential values in the field. To what extent can states enforce content standards in educational settings? On what grounds can they be challenged by individual educators, students or parents, or professional groups? Are there meaningful differences in K-12 education and, say, state-mandated gen-ed requirements at public universities?
In general, the law has treated the public university as a unique government institution, and university employees as uniquely afforded the right to independent expression. But it would be entirely possible to extend the university model to other branches of the state devoted to knowledge production. In 2020, for instance, the U.S. District Court for the District of Columbia ruled that Trump-era regulations and firings intended to shape the activity of the U.S. Agency for Global Media violated the First Amendment rights of journalists employed by the Voice of America—the court did so by directly analogizing between the constitutional rights of journalists and those of academics.
How far such analogies to the university could be extended into the regulatory state remains unclear. Traditionally, Congress has been able to attach such rules to administrative research and expression as it sees fit—as evidenced by bans on stem-cell research, or the longevity of the Dickey Amendment, which prevented the CDC from using government funds to advocate for gun control, and which chilled research on firearm injury prevention. But it is not clear why the institutional location of these public employees—the university as opposed to the research institute—should produce such differing speech environments. Is academic freedom a unique case, or does it contain lessons for knowledge and data work more broadly? What challenges does it face today in the current political context?
Meanwhile, moving in the other direction, some state freedom of information laws treat public universities simply as state agencies, subjecting professors to FOI requests about their funding, research, and professional correspondence. To what extent should academic freedom protect professors from the sorts of transparency and public accountability demands faced by other state employees in their work?
In an era of intense conflict around climate science, public health, and economic regulation, such questions are far from academic. What guardrails can be placed on government knowledge work and political advocacy? Can individual employees challenge these guidelines, and under what circumstances? Are such regulations even effective politics in the first place?
3) Political expression, compelled speech, and unionization
While courts have generally been reluctant to recognize the First Amendment rights of public employees, there is one glaring exception: the 2018 ruling in Janus that compulsory collection of union fees violated the First Amendment rights of nonunion employees. The case has been enormously controversial, and enormously significant for public sector unions. Of itself, it is therefore an important subject for debate and analysis. What are the First Amendment interests at stake in the case? Are they worth defending? And if not, what strategies—legal, political, intellectual—exist to weaken such uses of the First Amendment without retreating from important civil liberties commitments?
Seen in the broader context of public employee civil liberties, Janus also raises interesting questions about the norms that guide deeper relationships essential to democracy: concerning membership in a collectivity and individual rights to dissent, about the expressive significance of silent, grudging acquiescence by minorities in majoritarian environments.
It might be profitable, for instance, to compare Janus to an earlier literature on government-compelled speech and compelled silence, in which government funding placed particular rules around state-funded legal representatives or family planning counselors.
And what about the public sector employee generally dissatisfied with the direction of their agency under a new administration? If a government employee’s conscience is troubled by a policy adopted in their agency, what are the most legitimate ways for them to express it? Exit, loyalty, voice? Under what circumstances do bureaucrats go public with their institutional politics, and when are such public disclosures encouraged or punished? When government employees are forced out for expressive activity, as in the case of a public affairs specialist at the National Institute of Allergy and Infectious Diseases who was publishing pseudonymous criticism of Fauci on a right-wing website, does this raise First Amendment concerns? If so, under what circumstances?
Dates, Deadlines, and Logistics
If you are interested in participating in the symposium, please send us a 250-word abstract of your paper by November 15, 2023. The abstract should describe the central claim you intend to make in the paper and identify the main arguments you intend to offer in support of that claim. Please submit the abstract to [email protected]. We intend to review all of the abstracts by the end of November, with the goal of commissioning 6-12 papers of 8,000-12,000 words.
First drafts will be due March 15, 2024. These drafts will be circulated to all participants in advance of the symposium, which will take place on April 5, 2024, at Columbia University. We will hold a private workshop for participants to review and critique each other’s drafts, either over Zoom or in-person on April 4, 2024, depending on participants’ preferences. Final papers will be due after the symposium. Papers will be published on the Knight Institute’s website. We may also pursue publication in an edited volume with an academic press. If we do not decide to produce an edited volume, scholars will be free to pursue subsequent publication in a journal. Each author will receive an honorarium of $6,000 (divided between co-authors as needed). The Knight Institute will cover participants’ travel and hotel expenses.
Papers will be edited by 2023-2024 Senior Visiting Research Scholar Sam Lebovic, Professor of History at George Mason University and Senior Visiting Research Scholar at the Knight Institute, and Katy Glenn Bass, Research Director at the Knight Institute, with the assistance of other Institute staff. We may solicit and publish responses to the papers.
References
[1] Vigdor, Neil. "What is the Hatch Act? Explaining Why Trump Was Urged to Fire Kellyanne Conway." The New York Times, 13 June 2019, https://www.nytimes.com/2019/06/13/us/hatch-act/html; Klein, Betsy. "Biden's press secretary violated Hatch Act, watchdog says." CNN.com, 13 June 2023, https://www.cnn.com/2023/06/13/politics/karine-jean-pierre-hatch-act/index.html.
[2] Jackman, Tom. "Democrats press Homeland Security on domestic extremism in workforce." The Washington Post, 17 July 2023, https://www.washingtonpost.com/dc-md-va/2023/07/17/domestic-terrorism-homeland-security-extremism-oathkeepers/.