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CRS Annotated Constitution

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FIRST AMENDMENT
RELIGION AND EXPRESSION
FREEDOM OF EXPRESSION—SPEECH AND PRESS

Particular Governmental Regulations Which Restrict Expression

Government adopts and enforces many measures which are designed to further a valid interest but which may have restrictive effects upon freedom of expression. As an employer, government is interested in attaining and maintaining full production from its employees in a harmonious environment. As enforcer of the democratic method of carrying out selection of public officials, it is interested in outlawing “corrupt practices” and promoting a fair and smoothly–functioning electoral process. As regulator of economic affairs, its interests are extensive. As educator, it desires to impart knowledge and training to the young with as little distraction as possible. All of these interests may be achieved with some restriction upon expression, but if the regulation goes too far expression may be abridged and the regulation will fail.79

Government as Employer: Political Activities.—Abolition of the “spoils system” in federal employment brought with it con[p.1082]sequent restrictions upon political activities by federal employees. In 1876, federal employees were prohibited from requesting from, giving to, or receiving from any other federal employee money for political purposes, and the Civil Service Act of 1883 more broadly forbade civil service employees to use their official authority or influence to coerce political action of any person or to interfere with elections.80 By the Hatch Act, federal employees, and many state employees as well, are forbidden to “take any active part in political management or in political campaigns.”81 As applied through the regulations and rulings of the Office of Personnel Management, formerly the Civil Service Commission, the Act prevents employees from running for public office, distributing campaign literature, playing an active role at political meetings, circulating nomination petitions, attending a political convention except as a spectator, publishing a letter soliciting votes for a candidate, and all similar activity.82 The question is whether government, which may not prohibit citizens in general from engaging in these activities, may nonetheless so control the off–duty activities of its own employees.

In United Public Workers v. Mitchell,83 the Court answered in the affirmative. While the Court refused to consider the claims of persons who had not yet engaged in forbidden political activities, it did rule against a mechanical employee of the Mint who had done so. The opinion of the Court, by Justice Reed, recognized that the restrictions of political activities imposed by the Act did in some measure impair First Amendment and other constitutional rights,84 but it placed its decision upon the established principle that no right is absolute. The standard by which the Court judged the validity of the permissible impairment of First Amendment rights, however, was a due process standard of reasonableness.85 Thus, changes in the standards of judging incidental restrictions on expression suggested the possibility of a reconsideration of Mitch[p.1083]ell.86 But a divided Court, reaffirming Mitchell, sustained the Act’s limitations upon political activity against a range of First Amendment challenges.87 It emphasized that the interest of the Government in forbidding partisan political activities by its employees was so substantial that it overrode the rights of those employees to engage in political activities and association;88 therefore, a statute which barred in plain language a long list of activities would be clearly valid.89 The issue in Letter Carriers, however, was whether the language Congress did enact, forbidding employees to take “an active part in political management or in political campaigns,” was unconstitutional on its face, either because the statute was too imprecise to allow government employees to determine what was forbidden and what was permitted, or because the statute swept in under its coverage conduct that Congress could not forbid as well as conduct subject to prohibition or regulation. In respect to vagueness, plaintiffs contended and the lower court had held that the quoted proscription was inadequate to provide sufficient guidance and that the only further elucidation Congress had provided was to enact that the forbidden activities were the same activities which the Commission had as of 1940, and reaching back to 1883, “determined are at the time of the passage of this act prohibited on the part of employees . . . by the provisions of the civil–service rules. . . .” This language had been included, it was contended, to deprive the Commission of power to alter thousands of rulings made by it which were not available to employees and which were in any event mutually inconsistent and too broad.

The Court held, on the contrary, that Congress had intended to confine the Commission to the boundaries of its rulings as of 1940 but had further intended the Commission by a process of case–by–case adjudication to flesh out the prohibition and to give content to it. That the Commission had done. It had regularly summarized in understandable terms the rules which it applied, and it was authorized as well to issue advisory opinions to employees un[p.1084]certain of the propriety of contemplated conduct. “[T]here are limitations in the English language with respect to being both specific and manageably brief,” said the Court, but it thought the prohibitions as elaborated in Commission regulations and rulings were “set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interests.”90 There were conflicts, the Court conceded, between some of the things forbidden and some of the protected expressive activities, but these were at most marginal. Thus, some conduct arguably protected did under some circumstances so partake of partisan activities as to be properly proscribable. But the Court would not invalidate the entire statute for this degree of overbreadth.91 More recently, in Bush v. Lucas92 the Court held that the civil service laws and regulations are sufficiently “elaborate [and] comprehensive” so as to afford federal employees adequate remedy for deprivation of First Amendment rights as a result of disciplinary actions by supervisors, and that therefore there is no need to create an additional judicial remedy for the constitutional violation.


Footnotes

79 Highly relevant in this and subsequent sections dealing with governmental incidental restraints upon expression is the distinction the Court has drawn between content–based and content–neutral regulations, a distinction designed to ferret out those regulations which indeed serve other valid governmental interests from those which in fact are imposed because of the content of the expression reached. Compare Police Department v. Mosley, 408 U.S. 92 (1972) ; Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) ; and Schacht v. United States, 398 U.S. 58 (1970) , with Greer v. Spock, 424 U.S. 828 (1976) ; Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973) ; and United States v. O’Brien, 391 U.S. 367 (1968) . Content– based regulations are subjected to strict scrutiny, while content– neutral regulations are not.
80 Ch. 287, 19 Stat. 169 , Sec. 6, 18 U.S.C. §§ 602 –03, sustained in Ex parte Curtis, 106 U.S. 371 (1882) ; Ch. 27, 22 Stat. 403 , as amended, 5 U.S.C. Sec. 7323 .
81 Ch. 410, 53 Stat. 1148 Sec. 9(a), (1939), as amended, 5 U.S.C. Sec. 7324 (a)(2). By Ch. 640, 54 Stat. 767 (1940), as amended, 5 U.S.C. §§ 1501 –08, the restrictions on political activity were extended to state and local governmental employees working in programs financed in whole or in part with federal funds. This provision was sustained against federalism challenges in Oklahoma v. Civil Service Comm’n, 330 U.S. 127 (1947) . All the States have adopted laws patterned on the Hatch Act. See Broadrick v. Oklahoma, 413 U.S. 601, 604 (1973) .
82 The Commission on Political Activity of Government Personnel, Findings and Recommendations 11, 19–24 (Washington: 1968).
83 330 U.S. 75, 94–104 (1947) . The decision was 4–to–3, with Justice Frankfurter joining the Court on the merits only after arguing the Court lacked jurisdiction.
84 Id. at 94–95.
85 Id. at 101, 102.
86 The Act was held unconstitutional by a divided three–judge district court. National Ass’n of Letter Carriers v. Civil Service Comm’n, 346 F. Supp. 578 (D.D.C. 1972).
87 Civil Service Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973) . In Broadrick v. Oklahoma, 413 U.S. 601 (1973) , the Court refused to consider overbreadth attacks on a state statute of much greater coverage because the plaintiffs had engaged in conduct that the statute could clearly constitutionally proscribe.
88 The interests recognized by the Court as served by the proscription on partisan activities were (1) the interest in the efficient and fair operation of governmental activities and the appearance of such operation, (2) the interest in fair elections, and (3) the interest in protecting employees from improper political influences. 413U.S. at 557–67 413U.S. at 557–67.
89 Id. at 556.
90 Id. at 578–79.
91 Id. at 580–81.
92 462 U.S. 367 (1983) .
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