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—then 28 years old and employed as a clerk in the mail service—launched a modest magazine with ambitions far larger than its size suggested. The Harpoon carried a blunt masthead: “a magazine that hurts.” Its sole objective was to oppose the Post Office Department’s use of a gag order that silenced discussion about the train wrecks that annually devastated railway-mail workers and left many more injured. These gag orders—initially issued by the Postmaster General in the late nineteenth century and later broadened through executive actions by Theodore Roosevelt and William Taft—barred civil servants from petitioning or supplying information to Congress or campaigning for higher pay or better working conditions, except through their department head. The Harpoon defied this prohibition, vowing to expose fully the perilous conditions—both physically dangerous and organizationally unhealthy—surrounding the job.
Walter, plagued by recurrent respiratory trouble worsened by moldy mailbags and the dimly lit, dusty environs of the mail car, explained his retreat into a small Phoenix print shop as a matter of principle grounded in the highest constitutional ideals. He asserted that no public official possessed the stature to strip away the rights guaranteed to American citizens. The rights deemed vital to all public servants were being nullified by an order that, under the threat of immediate dismissal, forbade a clerk from speaking about his working conditions or from voicing concerns to Congress. Under the guise of ensuring “service efficiency,” postal authorities had deprived roughly 15,000 railway postal workers of their right to speak and to petition the government. In Walter’s view, the public interest was eroding as Americans remained unaware of the conditions under which their mail was delivered.
For Walter and the railway postal clerks who contributed to the Harpoon, the struggle over speech rights was not merely a matter of personal autonomy. It was a foundational demand for public accountability. Because railway post work was inherently transient and conducted in hidden corners of the system, public disclosure of its conditions served as the public’s window into a job that also affected safety. The year 1909 was particularly deadly: 27 railway mail workers lost their lives, 98 were seriously hurt, and 617 suffered minor injuries—the largest toll ever recorded. Walter framed the issue as one of the public good rather than private grievance, arguing that revealing dangerous working conditions implicated broader welfare beyond any single employee.
Simultaneously, Walter and other workers saw these gag orders not merely as a blunt instrument of presumed efficiency, but as a targeted anti-union tactic designed to prevent the formation of a robust railway-postal workers’ organization. Walter and many others sought affiliation with the American Federation of Labor (AFL) through a breakaway faction from the Department-dominated Railway Mail Association (RMA). Many of the clerks who joined the Harpoon’s cause were fired—justified as “for the good of the service” or due to their “pernicious activity.” Walter himself was among those dismissed. He sent Postmaster General Frank Hitchcock an advance copy of the Harpoon’s first issue, inviting the frugal Taft-appointed official to study it closely. In response, the Department informed him that his resignation had been accepted. A colleague even circulated a dead rat found in the water supply of his car, and a photograph of the rodent appeared in the Harpoon; the colleague was subsequently fired. Other supporters faced threats of dismissal as well, heightening the paper’s notoriety and generating broader support for its stance against executive orders and in favor of public employee speech.
A worker who has been fired may be dangerous; a fired worker with access to a printing press is even more so. With the gag order behind him, Walter devoted himself full-time to challenging authority as a gadfly publisher and advocate for labor. Within less than three years of the Harpoon’s birth, Walter testified before Congress, urging lawmakers to enact a single measure that would rescind the gag orders and safeguard the organizing rights of postal workers—speech rights that had already become inseparably linked to the idea of protection in Walter’s protest. In his testimony, Walter accused the Postmaster General of deliberately misinforming the committee about the age and safety of mail cars. Since clerks were forbidden from providing information directly to Congress, legislators remained uninformed about critical realities on the ground. The committee, in turn, confronted the limits of its own authority in the face of directives from the executive branch. Samuel Gompers, president of the AFL, noted that a decade of executive orders restricting federal employees from sharing information with Congress could effectively bar Members from requesting it at all.
With Congress and organized labor aligned in purpose, the Lloyd-La Follette Act emerged as law in 1912. The Act comprised four distinct provisions: first, that no person in the federal classified service could be removed except for a reason that would advance the service’s efficiency; second, a fired civil servant must receive written charges and an opportunity to respond; third, protection against removal or retaliation for postal workers who belonged to unions or similar associations, provided the organization did not impose a duty to strike; and fourth, a formal acknowledgment of civil servants’ right to petition Congress—individually or collectively—and to provide information to either house or to a committee or member. This last provision laid the groundwork for whistleblower protections later expanded by the Civil Service Reform Act of 1978 and the Whistleblower Protection Act of 1989.
Taken together, these provisions reflected organized labor’s view of speech as a cornerstone of accountability, oversight by Congress, and the functioning of public service. Although the Act did not require witness examination or formal trial-type hearings, it introduced new job-security protections for hundreds of thousands of government employees, signaling a shift away from an at-will model of employment. While modest in comparison to later safeguards, the requirement that employees receive reasons for dismissal and a chance to contest them embodied a cautious skepticism about unchecked state power and an adversarial posture toward management. This culture of due process—often associated with private-sector governance in the latter half of the twentieth century—had its roots in the early civil service and in the labor movement’s push for speech rights. Moreover, the explicit right of postal workers to organize into unions—linked, implicitly, to the right to petition Congress collectively—testified to labor’s broader vision of how government workers could voice concerns and galvanize reform. In the early twentieth century, a person might not have held a constitutional right to be a postal worker, to paraphrase Oliver Wendell Holmes, Jr., but once embedded in the postal service, Congress created a modest shield that allowed him to articulate discontent and participate in worker organizations that nurtured and emboldened dissent.
The aim of this essay is twofold: first, to place the Lloyd-La Follette Act in its historical context as a rather underexplored piece of legislation; second, to emphasize the labor origins of whistleblowing. The AFL played a pioneering role in opposing gag orders that silenced civil servants, and it drafted the Act itself, even endorsing its sole substantial amendment—a ban on union memberships requiring a strike. Institutionally, the AFL benefited from the law, as tens of thousands of postal workers joined unions affiliated with the federation in the latter half of the 1910s. The labor history of the Act has often been eclipsed by contemporary admirers who emphasize constitutional separation of powers; recognizing the early struggles over speech within the federal workforce helps scholars and citizens appreciate how labor organizations helped safeguard core democratic values such as transparency and accountability.
Despite the Act’s significance for the civil service and democratic accountability, it remains relatively understudied by historians. Political-development scholars have tended to analyze the Act chiefly through the lens of the dynamic between Congress and the executive branch in steering the administrative state, with scant attention to the underlying speech-related grievances of gagged civil servants. Part of this gap reflects a broader trend among labor historians, who have typically focused on the private sector and, in some cases, neglected public employees. Even works on public-sector unionism—such as Joseph Slater’s Public Workers—begin by lamenting the marginalization of public employees within labor history before turning to pivotal events like the 1919 Boston police strike. A closer look at the railway mail service reveals the central role of public employee speech and petition rights within the AFL’s broader political program at the turn of the century.
Legal scholar Laura Weinrib has argued that the labor movement has been overlooked in shaping civil liberties consciousness. Civil liberties, especially the freedom of speech, were linked to a “right to agitation”—an economically redistributionist vision intended to counter the consolidation of capital with organized power. Weinrib’s work, focusing on the free-speech commitments of the political left in the years preceding World War I, has influenced my own. The pursuit of civil servant speech—a right that labor partisans framed as constitutional—was inseparable from labor’s broader view of the First Amendment as a tool for the weak against the strong, within a class-struggle frame. By speaking out and organizing without fear of retaliation, public-sector workers could enlist others to the cause, encouraging the public to recognize how conditions in the railway mail service affected health, safety, and the timely delivery of mail. This labor history of public employee speech sheds light on labor’s crucial role in shaping and preserving the public’s right to know information bearing on matters of public concern.
The principles and language that eventually guided the Lloyd-La Follette Act emerged as a response to the constitutional readings that accompanied a decade of gag orders and directives from the Postmaster General. The early twentieth-century railway mail system offers a window into debates about “administrative constitutionalism”—the ways in which agency officials implement and interpret constitutional rules. The Post Office has long been viewed as a locus where officials wield broad authority over policies with constitutional dimensions—such as suppression of abolitionist literature and a discretionary, relatively unchecked power to censor “obscene” material. The control of speech by postmasters and postal inspectors—administrative censorship—was extensive well into the twentieth century. The working conditions within the department—an instance of a bureaucracy’s “internal rules,” as James Mashaw might say—exposed the Post Office’s capacity to shape the practical meaning of speech rights. With courts absent, the efforts of railway mail clerks and their AFL allies reimagined what speech, due process, and the separation of powers could look like in the early hundred years of the twentieth century.
The Lloyd-La Follette Act also symbolized a vindication of Congress’s prerogatives. The history of gag orders issued under the era’s more powerful presidencies—especially under Theodore Roosevelt and William Howard Taft—illustrates the risks of presidentialism. A key objective of those orders was to maintain “tranquility” in the government’s dealings with railway firms by keeping information from the public. Civil service unions strengthened democratic accountability by protecting employees who conveyed information to Congress. The intertwining stories of speech and labor rights suggest that a unionized civil service can serve as a check on presidential power. Conversely, a decline in labor and speech rights within the civil service would fortify executive power at the expense of democratic governance.
To frame the narrative, I outline four focal areas: first, the emergence of civil service reform in tandem with organized labor in the late nineteenth century; second, the reform of the spoils system that reshaped the postal service, with the Railway Mail Service as the crown jewel—both prestigious and perilous, which spurred clerks to forge worker groups and seek AFL affiliation; third, the spread of agency and executive gag orders aimed at suppressing grievances, denying Congress information, and ultimately crippling union organizing among clerks; and fourth, the organized counterresponse to these gag orders, including the Postal Department’s use of bureaucratic power to identify and dismiss dissenters, a strategy that backfired by amplifying discontent and publicity. The final element traces Congressional backing for postal workers’ speech rights, culminating in the Lloyd-La Follette Act—a law that braided together the interests of railway mail clerks, the broader labor movement, and Congress itself.
