Journal of Free Speech Law: "Gags and Grievance: The Labor Origins of Whistleblowing," by Sarah Milov
Part of a Knight First Amendment Institute Symposium on Managing Government Employee Speech in a Democracy, which the Journal is publishing.
The article is here; the Introduction:
In 1909, Urban Walter, a 28-year-old mail clerk, founded a small magazine with large ambitions. According to its masthead, the Harpoon was "a magazine that hurts." It was founded in pursuit of one goal: to oppose the Post Office Department's imposition of a "gag order" on any discussion of the train wrecks that killed scores of railway mail clerks annually and maimed many hundreds more. These gag orders, first promulgated by the Postmaster General in the late 19th century and later expanded by executive orders issued by Theodore Roosevelt and William Taft, prohibited civil servants from petitioning or giving information to Congress, or advocating for improved pay or working conditions except through their departmental head. The Harpoon defied the order, promising to give the "fullest publicity" the dangerous conditions—both physical and organizational—of the work.
Walter was frequently ill with respiratory issues, exacerbated by moldy mailbags and the dusty, lamplit conditions on the mail car. To explain why he spent his precious "lay-off" time in a small print shop in Phoenix, Arizona, Walter invoked the highest of constitutional ideals. "No public official is great enough to take away the guaranteed rights of American citizenship," Walter explained. "The very constitutional rights" of "lesser public servants" were abrogated by an order that, under penalty of swift removal, prohibited a clerk from discussing his working conditions publicly and from complaining to Congress. Under what Walter saw as the pretext of maintaining "efficiency of service," postal officials had robbed 15,000 railway postal workers of their right to speech and right to petition the government. In so doing, officials had also undermined the public good by keeping Americans ignorant of the conditions under which their mail was delivered.
Urban Walter and the railway postal clerks who read and wrote for the Harpoon understood their fight for speech rights not in individualistic and expressive terms, but as a precondition for public accountability. Because of the transient, hidden nature of railway postal work, disclosure of the clerks' working conditions was the public's window into a job that also bore upon public safety. In 1909 alone, 27 railway mail workers were killed, 98 "seriously injured," and 617 "slightly injured"—the highest number of deaths on record. Under Walter's framing, the disclosure of dangerous working conditions implicated the "public good," and not just the narrow interests of an individual worker.
At the same time, Walter and other railway postal workers saw these gag orders not as a blunt instrument of "efficiency," but as an explicitly anti-union tactic designed to forestall the organization of an effective railway postal workers organization. Walter and other postal clerks fought to affiliate with the American Federation of Labor (AFL) through a breakaway faction of the Department-dominated Railway Mail Association (RMA). Many of those clerks were fired—dismissed for the "good of the service," or because of their "pernicious activity." Walter was one such worker. He sent Postmaster General Frank Hitchcock "an advance copy" of Harpoon's first issue, instructing the economy-minded Taft appointee to "carefully peruse" the enclosure. In response, the Department's informed him that his (untendered) resignation had been accepted. A clerk sent Walter a dead rat that he had found inside the drinking water of his car. A photo of the rat appeared in the Harpoon. The clerk was also fired. Other supporters of the magazine were threatened with dismissal—which intensified the newspaper's support, producing a culture of insubordination in defiance of executive orders and in support of public employee speech.
A fired worker is dangerous, a fired worker with access to a printing press doubly so. No longer facing a gag, Walter devoted himself full-time to the job of gadfly publisher and labor advocate. Less than three years after the Harpoon's founding, Walter himself appeared before Congress, urging the passage of a single bill that would repeal the gag orders and protect the organizing rights of postal workers—speech goals that were to be linked legislatively as they had been in Walter's protest. In his testimony, Walter accused the Postmaster General of "misinforming the committee" outright on the age and safety of mail cars. Because clerks were prohibited from disclosing information to Congress, legislators remained ignorant. The committee was thus forced to confront its own powerlessness in the face of executive branch orders. As Samuel Gompers, the president of the AFL, was quick to observe, a decade of executive orders prohibiting federal employees from disclosing information to Congress "may just as well have been an inhibition to the Members of Congress … to ask for this information."
With the institutional prerogatives of Congress and the material interests of organized labor aligned, the Lloyd-La Follette Act became law in 1912. The Act had four discrete provisions: "no person in the classified service of the United States shall be removed therefrom except for such cause as will promote the efficiency of said service"; a requirement that a fired civil servant be furnished with written charges and an opportunity for responding to them; protection against removal or retaliation for postal employees who belonged to societies, associations, or unions—so long as the organization imposed no "duty to strike"; finally, the Act affirmed civil servants' right to petition Congress "either individually or collective" and to "furnish information to either House of Congress, or to a committee or Member thereof." This latter provision constituted the first statutory protection for whistleblowers, later expanded by the Civil Service Reform Act of 1978 and the Whistleblower Protection Act of 1989.
But taken together, the Act's provisions reflected organized labor's view of the value of speech, Congressional oversight, and government service. While not requiring the examination of witnesses or a trial-type hearing, the Act still afforded new tenure protections for hundreds of thousands of government employees, moving government employment firmly away from an at-will model. Though paltry in comparison to later procedural safeguards, the requirement that government employees be provided with reasons for their dismissal and an opportunity to contest those reasons nonetheless reflected both a skeptical view toward the state and an adversarial view toward management. This due-process culture that defined private sector organizational governance in the second half of the 20th century was first imagined, in thin form, by civil servants and their labor advocates. And, of course, the affirmation of the right of postal employees to unionize—also subtly suggested by the right to petition Congress collectively—is testament to labor's vision of public employee speech. In the early 20th century, a person may have possessed no constitutional right to be a postal worker, to paraphrase Oliver Wendell Holmes. But once he became one, Congress created a modest protection for him to air his dissatisfactions—and to belong to worker organizations that incubated and emboldened complaint.
The purpose of this essay is twofold: I seek to contextualize the passage of the Lloyd-La Follette Act, a curiously understudied piece of legislation. In so doing, I situate the Act within the history of the civil service and the development of an increasingly powerful presidency. Secondly, I highlight the labor origins of whistleblowing. The AFL was an early opponent of the gag orders that silenced civil servants. It was responsible for drafting the Act itself, and even approved its only substantial amendment—a prohibition on membership in unions that required a strike. Institutionally, it was a beneficiary of the law, as tens of thousands of postal workers joined unions affiliated with the AFL in the latter half of the 1910s. The labor history of the Act has been obscured by its modern-day admirers, who view it primarily as an embodiment of the separation of powers. Understanding this earlier history of struggle for speech in the federal workforce can help scholars and citizens appreciate the role that labor organizations have played in safeguarding core democratic values like transparency and accountability.
Despite its significance to the history of the civil service and democratic accountability, the Lloyd-La Follette Act is surprisingly understudied by historians. Scholars of American political development who have studied the Act and its politics have understood it largely in terms of what it revealed about the relationship between Congress and the executive branch for control of the administrative state. Little attention has been paid to the underlying speech-related grievances of gagged civil servants. Part of this lacuna lies in the fact that labor historians, as a rule, have tended to focus on the private sector at the expense of the public—particularly in studies of the late 19th and early 20th centuries. But even a study of public sector unionism like Joseph Slater's Public Workers begins with a historiographical lament at the marginalization of public employees within labor history before moving swiftly to the Boston police strike of 1919. Attention to the history of labor agitation within the railway mail service reveals the centrality of public employee speech and petition rights to the overall political vision of the AFL at the turn of the century.
Legal historian Laura Weinrib has argued that the labor movement has played a neglected role in the development of civil liberties consciousness. Civil liberties, and especially the right to speech, were linked to a "right to agitation"—an economically redistributive vision that "sought to counter the consolidation of capital with organized power of their own." Weinrib's study, particularly her focus on the free speech commitments of the political left in the years before the First World War, has shaped my own. The quest for civil servant speech—a right that labor partisans framed as constitutional, rejecting any distinction between rights and privileges or public and private employment—was part and parcel of labor's vision of the First Amendment as a weapon of the weak against the powerful in the class war. By speaking and organizing without fear of reprisal, organized government employees could also enlist noncombatants into the fight, as Americans might also come to understand their own health, safety, or timely receipt of the mails as implicated by conditions within the railway mail service. This labor history of public employee speech sensitizes us to organized labor's role in envisioning, expressing, and safeguarding the public's right to hear information that bears on matters of public concern.
The ideas and language ultimately enshrined in the Lloyd-La Follette Act were developed in response to the constitutional interpretation implied by a decade of gag orders and directives from the Postmaster General. The railway mail service of the early 20th century sheds light on scholarly debates on "administrative constitutionalism," or the ways that agency officials implement and interpret constitutional rules and norms. The Post Office has long been recognized as a site where officials exercised broad authority over policies with constitutional dimensions—such as suppression of abolitionist literature and a "virtually unreviewable" discretion to censor "obscene" materials. Regulation of speech by postmasters and postal inspectors—in other words, administrative censorship—was pervasive well into the 20th century. Working conditions within the postal service—an instance of a bureaucracy's "internal rules," to use Mashaw's formulation—reveals the Postal Department's power in attempting to determine the meaning of speech rights in practice. With no input from courts, advocacy by railway mail clerks and their allies in the AFL also refashioned ideas about speech, due process, and separation of powers in the early 20th century.
The Lloyd-La Follette Act also represented a vindication of Congressional prerogative. The history of the gag orders issued under such self-consciously "strong" presidencies as Theodore Roosevelt and William Howard Taft illustrates the perils of presidentialism. Indeed, an important goal of the orders was to maintain "tranquility" in the government's relationship with railway companies by keeping the public ignorant. Civil service unions have furthered democratic accountability by protecting workers who transmit information to Congress. The twinned history of speech and labor rights suggests that a unionized civil service can serve as a check on presidential power. The flip side of this coin is that a diminution of labor rights and speech rights within the civil service redounds to the benefit of the executive at the expense of democracy.
I begin by sketching the relationship between civil service reform and organized labor in the late 19th century. Reform of the spoils system reshaped the postal service more than any other division of the federal bureaucracy, and by the late 19th century the Railway Mail Service (RMS) was the most important and prestigious branch within the postal system. It was also the most dangerous, spurring clerks to invigorate worker organizations and, eventually, to attempt to affiliate with the AFL. I then turn to the promulgation of agency and executive gag orders intended to suppress the dissemination of grievance, prevent disclosure of information to Congress, and, eventually, to thwart union organizing amongst the clerks. Next, I examine the organized response to the gag orders, as well as the Postal Department's weaponization of its bureaucracy to ferret out and fire dissident clerks—a move that backfired, resulting in still more unrest and publicity. Finally, I examine Congressional support for the speech rights of postal workers, which culminated in the passage of the Lloyd-La Follette Act, legislation that braided together the interests of railway mail clerks, organized labor, and Congress itself.