In the last few years, the speech rights of public employees have been a particularly charged site of political controversy. During the Trump presidency, there was endless debate over the existence of a “deep state” of unelected bureaucrats—who were (depending on one’s leanings) either undermining the administration or keeping it in check. Meanwhile, the broader war over the regulatory and administrative state directly affects the rights and political activity of all members of the civil service, particularly researchers and experts in branches and agencies 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 disputes playing out over discussions of race and gender in the classroom amid the so-called “culture wars” shine an acute spotlight on the speech rights of public educators—by far the largest class of public employees in the nation.

I watched these controversies play out as I was completing a book on the ways that national security secrecy has undermined American democracy. One of the central questions I explore there is how to square the public’s right to know what its government is doing with a democratically elected government’s right to keep national security information secret. I thought a lot about the relationships between bureaucratic regulation and employee free speech in the national security field and was fascinated by how the legal and political clashes and compromises over secrecy, whistleblowing, and censorship shape the structure of American public opinion and American self-government more broadly.

Given the current state of U.S. politics, I wanted to ask similar questions about the role of the bureaucracy and public employee speech beyond the national security domain. In an earlier paper on the administrative history of FOIA, I was surprised to learn that the impact and desirability of transparency reforms looked very different when one focused on the regulatory state as opposed to the national security state. And as I began to read the literature on public employee speech rights, I quickly discovered a rich and vibrant body of scholarship working through these questions in a wide variety of fields, from academic freedom and administrative law to democratic theory and public employment law, among others. But as is so common in our fragmented academy, the opportunities for dialogue between these diverse fields were rarer than they could—and perhaps should—be.

So I am delighted to have the opportunity to work with the Knight First Amendment Institute to organize a wide-ranging, interdisciplinary project on the speech rights of public employees. My hope is that such a holistic conversation will be stimulating and clarifying for scholars working on the many specialized questions that arise in each of their subfields. This project hopes to uncover fresh perspectives on important doctrinal and normative questions about public employee speech through the unusual connections and juxtapositions that almost always emerge in interdisciplinary discussions.

And given the current controversies roiling American politics, and the heated legal and political fights over public sector speech that are yet to come, it is more important than ever to place public employees at the center of our discussions about free speech.

I also hope that this project sheds light on two deeper problems of U.S. democratic life. The first is the legitimacy crisis of the administrative state. Since 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. But as the ongoing assault on the regulatory state reveals, this has not been a successful project. The bureaucracy continues to face accusations that it is an undemocratic, elitist threat to the liberties of ‘ordinary’ Americans. It also seems that efforts to ensure procedural neutrality are eroding 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. As I have explored in my work on the history of press freedom, 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, some progressives have begun to retreat from their former embrace of First Amendment speech rights.

The central challenge today is to find a way to delineate a First Amendment philosophy and doctrine that maximally protects civil liberties without destabilizing the very possibility of collective governance. The debate over public employee speech rights is a particularly promising place to seek such a philosophy. The questions involved preclude thinking in straightforward and individualistic terms of the sort favored by abstract, neoliberal theories of the First Amendment, or by the classical liberalism of contract law. Instead, 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 broadly.

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This yearlong project will culminate in a major symposium, “Permission to Speak Freely? Managing Government Employee Speech in a Democracy,”  to be held at Columbia University on April 5, 2024. The Knight Institute is accepting proposals for symposium papers through November 15, 2023. More information is available here.