Democracy at Risk: The Public Employee Freedom of Speech Crisis

AuthorRobert Roberts
Published date01 March 2023
Date01 March 2023
Subject MatterPerspectives
Administration & Society
2023, Vol. 55(3) 613 –631
© The Author(s) 2022
Article reuse guidelines:
DOI: 10.1177/00953997221137568
Democracy at Risk:
The Public Employee
Freedom of Speech
Robert Roberts1
The article argues that the Pickering/Connick/Garcetti line of cases defining
the First Amendment freedom of speech rights of public employees
provides them little protection when they engage in organizational dissent.
The article explains that the U.S. Supreme Court has embraced a managerial
approach to the freedom of speech rights of public employees because of
its belief that organizational dissent may seriously undermine the efficiency
and effectiveness of public organizations. Due to this fact, the article argues
that public employees must develop a comprehensive understanding of First
Amendment freedom of speech jurisprudence to maximize their protection
from retaliation.
Pickering/Connick/Garcetti managerial approach, First Amendment, freedom
of speech, organizational dissent
The article argues that current public employee First Amendment jurispru-
dence directly threatens the nation’s democratic institutions by sharply limit-
ing the First Amendment freedom of speech rights of public employees. Early
in August of 2022, President Joe Biden held a private meeting with several
1James Madison University, Harrisonburg, VA, USA
Corresponding Author:
Robert Roberts, James Madison University, Miller Hall, Harrisonburg, VA 22807-0001, USA.
1137568AAS0010.1177/00953997221137568Administration & SocietyRoberts
614 Administration & Society 55(3)
historians “who painted the current moment as among the most perilous in
modern history for democratic governance” (Scherer et al., 2022). The group
compared the situation faced by the United States to the problem faced by the
country before the Civil War, when hyper-social, cultural, and partisan politi-
cal polarization helped to trigger the Civil War. Recent history tells us that
traditional checks and balances no longer work to check the abuse of execu-
tive power. On the contrary, the failure of traditional checks and balances has
emboldened recent presidential administrations to attempt to exert greater
control over career executive branch employees. This includes a proposal by
former President Donald Trump to create a new Schedule F which sought to
allow federal “agencies to convert existing career officials with policymaking
roles into political positions, removing their employment protections. In other
words, it gave the President or his appointees the power to fire potentially
hundreds or thousands of career officials at will” (Moynihan, 2022, p. 174).
Early in the twentieth century, the discipline of public administration success-
fully divorced itself from a “legalistic approach to public administration”
(Christensen et al., 2011, p. i125; Lynn, 2009). Recent decades have seen
increased tensions between management and legal-focused public administra-
tion. This has included an ongoing dispute over the appropriate role of career
civil servants in protecting the democratic values of public administration (Rohr,
1986, 1998). The focus on management values led many public employers to
adopt the so-called “ethic of neutrality” to regulate the conduct of public employ-
ees (Thompson, 1985, pp. 555, 556). The “ethics of neutrality” holds that public
administrators ‘‘are ethically neutral in the sense that they do not exercise inde-
pendent moral judgment” (Thompson, 1985, p. 556). The “ethic of neutrality”
requires public employees “to give effect to whatever principles are reflected in
the orders and policies they are charged with implementing” (Thompson, 1985,
p. 556). It requires that public administrators not engage in any type of criticism
of their organization while employed by the government.
Interestingly, the early 20th century saw some public employees attempt to
gain the right to complain about workplace treatment. Members of postal
employee unions lobbied Congress and President Theodore Roosevelt for
pay increases and better working conditions. In 1902, Theodore Roosevelt
responded by prohibiting all postal and federal employees, “directly or indi-
rectly, individually or through associations,” ‘‘to solicit members of Congress
for wage increases or to try to influence the passage of any other legislation—
except through the heads of their department” (National Association of Letter
Carriers, 2022, p. 21).
The Roosevelt federal employee gag rule fits well with the emerging pub-
lic employee “privilege” doctrine (Dotson, 1955). In McAuliffe v. Mayor of
New Bedford (1891), Justice Oliver Wendell Holmes articulated the public

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