Democracy at Risk: The Public Employee Freedom of Speech Crisis

• Author: Robert Roberts
• DOI: http://doi.org/10.1177/00953997221137568
• Published date: 01 March 2023
• Date: 01 March 2023
• Subject Matter: Perspectives

https://doi.org/10.1177/00953997221137568

Administration & Society

2023, Vol. 55(3) 613 –631

© The Author(s) 2022

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DOI: 10.1177/00953997221137568

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Perspectives

Democracy at Risk:

The Public Employee

Freedom of Speech

Crisis

Robert Roberts1

Abstract

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.

Keywords

Pickering/Connick/Garcetti managerial approach, First Amendment, freedom

of speech, organizational dissent

Introduction

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.

Email: robertrn@jmu.edu

1137568AAS0010.1177/00953997221137568Administration & SocietyRoberts

research-article2022

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