The Costs of Agencies: Waters V. Churchill and the First Amendment in the Administrative State

By Roosevelt, Kermit | The Yale Law Journal, January 1997 | Go to article overview

The Costs of Agencies: Waters V. Churchill and the First Amendment in the Administrative State


Roosevelt, Kermit, The Yale Law Journal


In 1987, Cheryl Churchill lost her job for criticizing her employer. Churchill was a public employee holding a probationary nursing position in the obstetrics department of McDonough Hospital in Macomb, Illinois. Alleging that the termination violated her First Amendment rights, she sued the hospital and her supervisor, Cynthia Waters, in federal court. In 1994, her case reached the Supreme Court.(1) The Court held that First Amendment analysis should be applied not to Churchill's actual speech but to what the hospital administrators might reasonably have thought she said.(2) Because that speech "may have substantially dampened" a fellow employee's interest in working for the obstetrics department,(3) the Court explained, it was sufficiently disruptive to fall outside the bounds of First Amendment protection. Regardless of what Churchill had actually said, if the administrators were sincere and reasonable in their belief, they were entitled to summary judgment.(4)

Waters represents the Supreme Court's latest word on the First Amendment rights of government employees. The Court's treatment of this area of First Amendment law has received a fair amount of scholarly attention, and Waters itself has been criticized for the way in which it distributes power in the employer-employee relationship.(5) Certainly it is true that after Waters, government employers enjoy greater freedom in terminating employees based on speech. Academic critiques, however, have by and large accepted the Court's concept of efficiency and its characterization of the competing interests in Waters.(6) Such critiques are thus left to dispute the judgment of the hospital administrators, and they rely mostly on the contention that employee speech can contribute to workplace efficiency. As an empirical claim about effective management techniques, this argument can be addressed properly only to managers; to judges it is simply an invitation to usurp managerial discretion.(7)

This Note argues that the prevailing focus on Waters's effects in the workplace is misguidedly narrow and leaves the crucial issues unexamined. It contends that at stake in Waters is not merely the relationship of the individual employee to the government, nor the government's ability to manage the workplace. Implicated in the Court's analysis, and affected by its ruling, are fundamental concerns about the relationship between the citizen and the government in general, about the scope of the democratic political process, and ultimately about the possibility for public oversight and control of the growing administrative state.

Proper development of these larger issues requires considerable excavation. Part I of the Note discusses the facts of the Waters case and the resulting state of the law. It examines the Court's reasoning to uncover the conception of government that motivates the decision and concludes that the Court employs a model in which governmental managers have broad discretion to limit individual liberty in pursuit of governmental efficiency. Part II employs the agency theory developed in corporate law to suggest that the Court's attempt to promote efficiency by deferring to managerial judgment is theoretically misguided. Part III broadens the analysis by questioning the Court's portrayal of Waters as a conflict simply between individual liberty and governmental efficiency. It suggests that the Court's libertarian understanding of the First Amendment gives insufficient weight to the value of self-governance. Part IV argues that self-governance is present in the Waters analysis, but hidden within the underanalyzed notion of governmental efficiency. This Part then articulates a more complex understanding of efficiency, which reveals that governmental efficiency comprehends not only the narrow instrumental interest recognized by the Court but also a broader societal interest in self-governance, both of which are served by employee speech. Part V then proposes an alternative to the current treatment of public employee speech that recognizes the deeper values at issue and accords them their proper weight. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Costs of Agencies: Waters V. Churchill and the First Amendment in the Administrative State
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.