On April 5, 2024, the Knight Institute will host a symposium to explore the law and politics of public employee speech, and how the government ought to manage these speech rights in a complex democracy. The symposium, “Permission to Speak Freely? Managing Government Employee Speech in a Democracy,” is a collaboration between the Knight Institute and the Institute’s Senior Visiting Research Scholar Sam Lebovic and will take place at Columbia University and online.

Participants in the symposium include legal scholars, historians, litigators, and practitioners. Today, we are excited to announce that the symposium will feature new scholarship on the speech rights of members of government unions and boards, education sector employees, and whistleblowers, including: 

Unanimity and Dissent

Kate Andrias (Columbia Law School) will explore First Amendment questions surrounding public employee unions. In response to the increased activity of public employee unions, particularly in education, cities and states have sought injunctions against strikes and some have enacted new laws limiting picketing on public property, reducing union resources, and restricting the scope of bargaining. Analyzing these legal battles, and drawing on comparative experience and social science research about the role unions play in promoting democracy, Andrias argues that public sector bargaining and strikes deserve First Amendment protection. Though there is virtually no possibility this Court will adopt such a reading, worker movements and political actors can and should engage in First Amendment lawmaking from below.

Frank LoMonte (CNN; University of Georgia School of Law) will argue that school board, city council, and other government board members should be able to publicly express dissent from the consensus of the board. Increasingly, policymaking boards across the country are enforcing “One Board” or “One Voice” rules that constrain the speech of elected or appointed members. In response, LaMonte asserts that the public’s right to receive information overrides any attempt to purport an impression of unanimity—as that carries no particular weight in First Amendment analysis.

Public Schools

Caroline Mala Corbin (University of Miami School of Law) will argue that the Garcetti rule, which prevents public school teachers from challenging government control of classroom speech, is premised on the mistaken assumption that the First Amendment only protects the speaker. It does not. Instead, the First Amendment protects the free flow of speech for both speakers and audiences. As a result, she asserts that the Garcetti rule should be retracted, especially in an era where speech in public schools—as seen through curriculum bans on topics like sexual and gender identity—is under fire.

Heidi Kitrosser (Northwestern University Pritzker School of Law) will use the current wave of new and proposed restrictions on the teaching of race and gender in public schools to explore the “anti-distortion” principle in free speech doctrine. Under this principle, the government may not condition funding on requirements that distort the nature of the funded expression. She outlines challenges to this principle and argues that by understanding how courts can methodically apply the anti-distortion principle, we can further understand the Court's view on the true “nature” of public education.

Whistleblowing

Sarah Milov (University of Virginia) will explore the history of the 1912 Lloyd-La Follette Act, a major piece of civil service reform legislation that protected the speech of federal employees and continues to provide critical labor protections today. She locates the origins of this forgotten piece of civil service legislation in battles over the right of postal workers to organize and to share information with Congress. Whistleblower protections in the 1978 Civil Service Reform Act—the most substantial overhaul of the structure of the federal workforce—are indebted to late 19th and early 20th century struggles over the right of public employees to form unions and to share information with Congress without fear of retaliation.

Ronald Krotoszynski (University of Alabama School of Law) will analyze the failure of the courts to constitutionally protect government employee speech, and take into account the critical role that whistleblowing has in fair elections and self-governance. Whistleblowing speech often provides the public with information essential to holding governments accountable—yet, the judicial failure to protect this speech is a global one. He outlines that this issue is not unique to the United States, pointing to cases in Canada and Australia, and concludes that the courts must protect public employees’ ability to blow the whistle on misconduct. 

Academic Freedom

Charlotte Garden (University of Minnesota School of Law) will explore when and how should the First Amendment protect the speech of public educators. While most public employees receive no First Amendment protections in the course of their duties, many circuit courts have concluded that the First Amendment does protect aspects of faculty teaching and scholarship. While the courts have often defaulted to the Pickering-Connick test to determine what speech is permissible, Garden argues that the Pickering-Connick test is ill-suited to resolve First Amendment disputes involving faculty speech. Instead, she considers alternative approaches, such as the delegation of certain workplace decisions and due process concerns to faculty or university administrators.

Additional speakers at the symposium include Kathleen Clark (Washington University in St. Louis School of Law), David Rabban (University of Texas Law School), Ellen Schrecker (Yeshiva University), Emerson Sykes (ACLU), Jeremy Young (PEN America), and more.

Registration is now open for “Permission to Speak Freely? Managing Government Employee Speech in a Democracy.”