Commentary: Protecting the Right Guerillas

Published date01 January 2015
Date01 January 2015
Jeremy Creelan is partner at Jenner &
Block LLP. He served as special counsel to
the governor of New York State from 2010
through 2013.
Protecting the Right Guerillas 135
Public Administration Review,
Vol. 75, Iss. 1, pp. 135–136. © 2014 by
The American Society for Public Administration.
DOI: 10.1111/puar.12314.
Jeremy Creelan
Jenner & Block LLP
Public employees arguably have particularly
strong incentives to avoid speaking their minds
in ways that might threaten their employment.
Valuable pensions and other benef‌i ts are at stake.
Governments often provide professional opportunities
not of‌f ered by the private sector, geographically and
experientially. Civic-minded public servants cannot
get their f‌i x from private employment.
Given those incentives to avoid disruptive speech
and the protections of immunity, do judges need
to worry that liberally clothing public employees’
speech in First Amendment protection will open the
f‌l oodgates to “guerilla statesmen” subverting their
superiors in government? In a review of the courts’
approach to this area in “Guerilla Statesmanship:
Constitutionalizing an Ethic of Dissent,” Chad B.
Newswander concludes that the current case law
allows “administrators the chance to openly tutor and
inform others on issues of public importance while
also observing careful restrictions.” Newswander
places the case law in context of the theoretical con-
cept of “guerilla statesmanship” through a review of
the relevant public administration literature.
But have the courts really struck the right balance?
As summarized by Newswander, the U.S. Supreme
Court has articulated a balancing test to determine
when a public employee’s speech should be protected
by the First Amendment. In a series of cases begin-
ning in 1968 with Pickering v. Board of Education, and
most recently in 2014 in Lane v. Franks, the Court
has extended such protection to speech that concerns
a matter “of public concern” and is outside the scope
of the employee’s ordinary job duties, while declin-
ing to protect speech made in the course of fulf‌i lling
those duties.  us, a teacher’s letter to a local news-
paper protesting the actions of her employer school
board (Pickering) or a program manager’s subpoe-
naed testimony in court about a corrupt colleague’s
actions (Lane) are protected, whereas a prosecutor’s
memorandum to his superiors protesting a fabricated
police af‌f‌i davit in a criminal case handled by his of‌f‌i ce
(Garcetti v. Ceballos) is not.
Most striking in these cases is the Court’s nearly exclu-
sive focus on whether the speech at issue fell within
the scope of the speaker’s job duties.  e reason for
this focus is probably obvious: federal courts have a
long tradition of protecting public pronouncements
about government performance—the essence of
political speech—but a natural hesitation to second-
guess an employer’s reaction to an employee’s speech
inside the workplace. Navigating workplace disputes
with a constitutional lens feels far more fraught with
unintended consequences than protecting the same
employee when he or she steps onto a public soapbox.
As a result, little ink is spilled in these cases to explore
the nuances of the threats posed by dif‌f erent types of
employee speech to the proper functioning of a public
Arguably, the Court’s emphasis on the speaker’s duties
produces counterintuitive and often counterproduc-
tive results. It grants more protection to the most
disruptive speakers who reserve their attacks against
superiors for a public forum—a judicial encourage-
ment to such disruption. By contrast, the more the
speech is tied to the speaker’s job—the area of the
speaker’s expertise, the area where his or her speech
is most likely to produce fruitful improvements in
agency performance, and the area where the speech
is most likely to be directed within the proper chain
of command—the less protection it receives. Yet the
employee’s need for protection against retribution,
and society’s interest in such protection, may be high-
est when the “of‌f ense” is to speak up in the course of
fulf‌i lling one’s job duties rather than circumventing
the chain of command and publicly and sometimes
recklessly shaming one’s superiors in the press.
Would it make more sense for the Court to extend
protection to public employees’ speech irrespec-
tive of its connection to their job duties? Under
such an approach, the prosecutor who protested
Protecting the Right Guerillas

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