We have the following Call for Papers:
Permission to Speak Freely? Managing Government Employee Speech in a Democracy
Symposium to be held at Columbia University on April 5, 2024
The Knight Institute invites submissions for a spring symposium, “Permission to Speak Freely? Managing Government Employee Speech in a Democracy,” to be held at Columbia University on April 5, 2024. The symposium, organized in partnership with the Institute’s Senior Visiting Research Scholar Sam Lebovic, will explore the law and politics of public employee speech. A more detailed discussion of the theme of the symposium is below, followed by logistical information for those who wish to participate.
Description and Aims
In our polarized, paranoid politics, the speech of public employees is fraught as perhaps never before. During the Trump presidency, much hope and fear was invested in the notion of a “deep state” with the capacity, depending on one’s preferences, to either maintain or derail the legitimacy of the federal government. Leaks and rumor and background briefings—always a central form of U.S. politics—became ever-more charged sites of conflict: the New York Times ran a symptomatically infamous op-ed in which one anonymous insider declared themselves to be the “the resistance.” The war over the regulatory and administrative state, meanwhile, directly implicates the rights and political activity of the civil service—particularly in those branches 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 the culture wars, playing out particularly over discussions of race and gender in the classroom, directly implicate the speech acts of educators—by far the largest class of public employees in the nation.
Each of these domains has been subject to considerable controversy, as well as deep debate in many fields of academic inquiry. But they have not been treated as instances of a broader problem: how a modern, bureaucratized democracy should manage the speech of its government employees. The issues are complex, requiring the balancing of competing democratic values: transparency v autonomy; delegation v supervision; objectivity v diversity; tolerance of debate and disagreement v the need to reach some form of functional consensus for collective governance to continue. They require parsing the intersection of First Amendment law, administrative law, labor law, democratic theory, and the brute science of American political contestation.
This symposium will bring together an interdisciplinary group of experts to explore these problems. The stakes are significant. There are some 22 million public employees in the U.S.—to determine their speech rights is to determine the speech rights of a population twice as large as the entire population of Cuba or Greece or Hungary or Israel. To think holistically about the problems and politics of public employee speech offers an opportunity to clarify normative and doctrinal problems in vexed subfields of the law: academic freedom; whistleblowing and transparency; public sector employment and unions.
Such a conversation also promises to be generative, to shed light on two deeper problems of U.S. democratic life. The first is the legitimacy crisis of the administrative state. Since at least 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. As the ongoing assault on the regulatory state reveals, they have not succeeded in protecting the bureaucracy from accusations that it is an undemocratic, elitist threat to the liberties of ‘ordinary’ Americans; such efforts to ensure procedural neutrality may also have eroded 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. 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, progressives have begun to retreat from their former embrace of First Amendment speech rights.
A central challenge today, therefore, is to find a way to delineate a philosophy and doctrine for the First Amendment that maximally protects civil liberties without destabilizing the very possibility of collective governance. The question of public employee speech rights is a particularly promising place to seek such a philosophy. The questions involved automatically preclude thinking in straightforwardly individualistic terms of the sort favored by abstract, neoliberal theories of the First Amendment, or by the classical liberalism of contract law. 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 generally.
We welcome papers that take up the law and politics of public employee speech from any angle. Papers that compare these issues across differing doctrinal domains, differing national traditions, or different time periods are particularly welcome, as are papers that seek to shed new light on the following themes . . .
Read on here.
-- Karen Tani
