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CRS Annotated Constitution

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Government as Employer: Free Expression Generally.—Change has occurred in many contexts, in the main with regard to state and local employees and with regard to varying restrictions placed upon such employees. Foremost among the changes has been the general disregarding of the “right–privilege” distinction. Application of that distinction to the public employment context was epitomized in the famous sentence of Justice Holmes: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”93 The Supreme Court embraced this application in the early 1950s, first affirming a lower court decision by equally divided vote,94 and soon after applying the distinction itself. Upholding a prohibition on employment as[p.1085]teachers of persons who advocated the desirability of overthrowing the government, the Court declared that “[i]t is clear that such persons have the right under our law to assemble, speak, think and believe as they will. . . . It is equally clear that they have no right to work for the state in the school system on their own terms. They may work for the school system under reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not.”95

The same year, however, saw the express rejection of the right– privilege doctrine in another loyalty case. Voiding a loyalty oath requirement conditioned on mere membership in suspect organizations, the Court reasoned that the interest of public employees in being free of such an imposition was substantial. “There can be no dispute about the consequences visited upon a person excluded from public employment on disloyalty grounds. In the view of the community, the stain is a deep one; indeed, it has become a badge of infamy. . . . [W]e need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.”96 The premise here that if removal or rejection injures one in some fashion he is therefore entitled to raise constitutional claims against the dismissal or rejection has faded in subsequent cases; the rationale now is that while government may deny employment, or any benefit for that matter, for any number of reasons, it may not deny employment or other benefits on a basis that infringes that person’s constitutionally protected interests. “For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ . . . Such interference with constitutional rights is impermissible.”97

[p.1086]

However, the fact that government does not have carte blanche in dealing with the constitutional rights of its employees does not mean it has no power at all. “[I]t cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.”98 Pickering concerned the dismissal of a high school teacher who had written a critical letter to a local newspaper reflecting on the administration of the school system. The letter also contained several factual errors. “The problem in any case,” Justice Marshall wrote for the Court, “is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”99 No general standard was laid down by the Court, but a suggestive analysis was undertaken. Dismissal of a public employee for criticism of his superiors was improper, the Court indicated, where the relationship of employee to superior was not so close, such as day–to–day personal contact, that problems of discipline or of harmony among coworkers, or problems of personal loyalty and confidence, would arise.100 The school board had not shown that any harm had resulted from the false statements in the letter, and it could not proceed on the assumption that the false statements were per se harmful, inasmuch as the statements primarily reflected a difference of opinion between the teacher and the board about the allocation of funds. Moreover, the allocation of funds is a matter of important public concern about which teachers have informed and definite opinions that the community should be aware of. “In these circumstances we conclude that the interest of the school adminis[p.1087]tration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.”101

Combining a balancing test of governmental interest and employee rights with a purportedly limiting statutory construction, the Court, in Arnett v. Kennedy,102 sustained the constitutionality of a provision of federal law authorizing removal or suspension without pay of an employee “for such cause as will promote the efficiency of the service” when the “cause” cited concerned speech by the employee. He had charged that his superiors had made an offer of a bribe to a private person. The quoted statutory phrase, the Court held, “is without doubt intended to authorize dismissal for speech as well as other conduct.” But, recurring to its Letter Carriers analysis,103 it noted that the authority conferred was not impermissibly vague, inasmuch as it is not possible to encompass within a statutory enactment all the myriad situations that arise in the course of employment and the language used was informed by developed principles of agency adjudication coupled with a procedure for obtaining legal counsel from the agency on the interpretation of the law.104 Neither was the language overbroad, continued the Court, because it “proscribes only that public speech which improperly damages and impairs the reputation and efficiency of the employing agency, and it thus imposes no greater controls on the behavior of federal employees than are necessary for the protection of the Government as an employer. . . . We hold that the language ‘such cause as will promote the efficiency of the service’ in the Act excludes constitutionally protected speech, and that the statute is therefore not overbroad.”105

Pickering was distinguished in Connick v. Myers,106 involving what the Court characterized in the main as an employee grievance[p.1088]rather than an effort to inform the public on a matter of public concern. The employee, an assistant district attorney involved in a dispute with her supervisor over transfer to a different section, was fired for insubordination after she circulated a questionnaire among her peers soliciting views on matters relating to employee morale. This firing the Court found permissible. “When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.”107 Whether an employee’s speech addresses a matter of public concern, the Court indicated, must be determined not only by its content, but also by its form and context.108 Because one aspect of the employee’s speech did raise matters of public concern, Connick also applied Pickering’s balancing test, holding that “a wide degree of deference is appropriate” when “close working relationships” between employer and employee are involved.109 The issue of public concern is not only a threshold inquiry, but under Connick still figures in the balancing of interests: “the State’s burden in justifying a particular discharge varies depending upon the nature of the employee’s expression” and its importance to the public.110

On the other hand, the Court has indicated that an employee’s speech may be protected as relating to matters of public concern even in the absence of any effort or intent to inform the public.111 In Rankin v. McPherson112 the Court held protected an employee’s comment, made to a coworker upon hearing of an unsuccessful attempt to assassinate the President, and in a context critical of the[p.1089]President’s policies, “If they go for him again, I hope they get him.” Indeed, the Court in McPherson emphasized the clerical employee’s lack of contact with the public in concluding that the employer’s interest in maintaining the efficient operation of the office (including public confidence and good will) was insufficient to outweigh the employee’s First Amendment rights.113

Supplement: [P. 1089, add to text following n.113:]

The protections applicable to government employees have been extended to independent government contractors, the Court announcing that “the Pickering balancing test, adjusted to weigh the government’s interests as contractor rather than as employer, determines the extent of their protection.” 81

Thus, although the public employer cannot muzzle its employees or penalize them for their expressions and associations to the same extent that a private employer can (the First Amendment, inapplicable to the private employer, is applicable to the public employer),114 the public employer nonetheless has broad leeway in restricting employee speech. If the employee speech does not relate to a matter of “public concern,” then Connick applies and the employer is largely free of constitutional restraint. If the speech does relate to a matter of public concern, then Pickering’s balancing test (as modified by Connick) is employed, the governmental interests in efficiency, workplace harmony, and the satisfactory performance of the employee’s duties115 being balanced against the employee’s First Amendment rights. While the general approach is relatively easy to describe, it has proven difficult to apply.116 The First Amendment, however, does not stand alone in protecting the[p.1090]speech of public employees; statutory protections for “whistleblowers” add to the mix.117


Footnotes

93 McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29E. 517 (1892).
94 Bailey v. Richardson, 182 F. 2d 46, 59 (D.C. Cir. 1950), aff’d by an equally divided Court, 341 U.S. 918 (1951) . The appeals court majority, upholding the dismissal of a government employee against due process and First Amendment claims, asserted that “the plain hard fact is that so far as the Constitution is concerned there is no prohibition against the dismissal of Government employees because of their political beliefs, activities or affiliations. . . . The First Amendment guarantees free speech and assembly, but it does not guarantee Government employ.” Although the Supreme Court issued no opinion in Bailey, several Justices touched on the issues in Joint Anti–Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951) . Justices Douglas and Jackson in separate opinions rejected the privilege doctrine as applied by the lower court in Bailey. Id. at 180, 185. Justice Black had previously rejected the doctrine in United Public Workers v. Mitchell, 330 U.S. 75, 105 (1947) (dissenting opinion).
95 Adler v. Board of Education, 342 U.S. 458, 492–93 (1952) . Justices Douglas and Black dissented, again rejecting the privilege doctrine. Id. at 508. Justice Frankfurter, who dissented on other grounds, had previously rejected the doctrine in another case, Garner v. Board of Public Works, 341 U.S. 716, 725 (1951) (concurring in part and dissenting in part).
96 Wieman v. Updegraff, 344 U.S. 183, 190–91, 192 (1952) . Some earlier cases had utilized a somewhat qualified statement of the privilege. United Public Workers v. Mitchell, 330 U.S. 75, 100 (1947) ; Garner v. Board of Public Works, 341 U.S. 716, 722 (1951) .
97 Perry v. Sindermann, 408 U.S. 593, 597 (1972) . In a companion case, the Court noted that the privilege basis for the appeals court’s due process holding in Bailey “has been thoroughly undermined in the ensuing years.” Board of Regents v. Roth, 408 U.S. 564, 571 n.9 (1972) . The test now in due process and other such cases is whether government has conferred a property right in employment which it must respect, see infra, pp. 1622–31, but the inquiry when it is alleged that an employee has been penalized for the assertion of a constitutional right is that stated in the text. A finding, however, that protected expression or conduct played a substantial part in the decision to dismiss or punish does not conclude the case; the employer may show by a preponderance of the evidence that the same decision would have been reached in the absence of the protected expression or conduct. Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977) ; Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 416 (1979) .
98 Pickering v. Board of Education, 391 U.S. 563, 568 (1968) .
99 Id.
100 Id. at 568–70. Contrast Connick v. Myers, 461 U.S. 138 (1983) , where Pickering was distinguished on the basis that the employee, an assistant district attorney, worked in an environment where a close personal relationship involving loyalty and harmony was important. “When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.” Id. at 151–52.
101 Id. at 570–73. Pickering was extended to private communications of an employee’s views to the employer in Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979) , although the Court recognized that different considerations might arise in context. That is, with respect to public speech, content may be determinative in weighing impairment of the government’s interests, whereas with private speech, manner, time, and place of delivery may be as or more important. Id. at 415 n.4.
102 416 U.S. 134 (1974) . The quoted language is from 5 U.S.C. Sec. 7501 (a).
103 Civil Service Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548, 578–79 (1973) .
104 Arnett v. Kennedy, 416 U.S. 134, 158–64 (1974) .
105 Id. at 162. In dissent, Justice Marshall argued: “The Court’s answer is no answer at all. To accept this response is functionally to eliminate overbreadth from the First Amendment lexicon. No statute can reach and punish constitutionally protected speech. The majority has not given the statute a limiting construction but merely repeated the obvious.” Id. at 229.
106 461 U.S. 138 (1983) .
107 461U.S. at 146 461U.S. at 146. Connick was a 5–4 decision, with Justice White’s opinion of the Court being joined by Chief Justice Burger and Justices Powell, Rehnquist, and O’Connor. Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens, dissented, arguing that information concerning morale at an important government office is a matter of public concern, and that the Court extended too much deference to the employer’s judgment as to disruptive effect. Id. at 163–65.
108 Id. at 147–48. Justice Brennan objected to this introduction of context, admittedly of interest in balancing interests, into the threshold issue of public concern.
109 Id. at 151–52.
110 Id. at 150. The Court explained that “a stronger showing [of interference with governmental interests] may be necessary if the employee’s speech more substantially involve[s] matters of public concern.” Id. at 152.
111 This conclusion was implicit in Givhan, supra n.101, characterized by the Court in Connick as involving “an employee speak[ing] out as a citizen on a matter of general concern, not tied to a personal employment dispute, but [speaking] privately.” 461U.S. at 148 461U.S. at 148 n.8.
112 483 U.S. 378 (1987) . This was a 5–4 decision, with Justice Marshall’s opinion of the Court being joined by Justices Brennan, Blackmun, Powell, and Stevens, and with Justice Scalia’s dissent being joined by Chief Justice Rehnquist, and by Justices White and O’Connor. Justice Powell added a separate concurring opinion.
113 “Where . . . an employee serves no confidential, policymaking, or public contact role, the danger to the agency’s successful function from that employee’s private speech is minimal.” 483U.S. at 390–91 483U.S. at 390–91.
114 See, e.g., Elrod v. Burns, 427 U.S. 347 (1976) , and Branti v. Finkel, 445 U.S. 507 (1980) (political patronage systems impermissibly infringe protected belief and associational rights of employees); Madison School Dist. v. WERC, 429 U.S. 167 (1977) (school teacher may not be prevented from speaking at a public meeting in opposition to position advanced by union with exclusive representation rights). The public employer may, as may private employers, permit collective bargaining and confer on representatives of its employees the right of exclusive representation, Abood v. Detroit Bd. of Educ., 431 U.S. 209, 223–32 (1977) , but the fact that its employees may speak does not compel government to listen to them. See Smith v. Arkansas State Highway Employees, 441 U.S. 463 (1979) (employees have right to associate to present their positions to their employer but employer not constitutionally required to engage in collective bargaining). See also Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271 (1984) (public employees not members of union have no First Amendment right to meet separately with public employers compelled by state law to “meet and confer” with exclusive bargaining representative). Government may also inquire into the fitness of its employees and potential employees, but it must do so in a manner that does not needlessly endanger the expression and associational rights of those persons. See, e.g., Shelton v. Tucker, 364 U.S. 479 (1969) .
115 In some contexts, the governmental interest is more far– reaching. See Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (interest in protecting secrecy of foreign intelligence sources).
116 For analysis of the efforts of lower courts to apply Pickering and Connick, see Massaro, Significant Silences: Freedom of Speech in the Public Sector Workplace, 61 Cal. L. Rev. 1 (1987); and Allred, From Connick to Confusion: The Struggle to Define Speech on Matters of Public Concern, 64 L.J. 43 (1988).

Supplement: [P. 1089, add to n.116:]

In Waters v. Churchill, 511 U.S. 661 (1994) , the Court grappled with what procedural protections may be required by the First Amendment when public employees are dismissed on speech–related grounds, but reached no consensus.

117 The principal federal law is the Whistleblower Protection Act of 1989, Pub. L. No. 101–12, 103 Stat. 16 , 5 U.S.C. Sec. 1201 et seq.

Supplement Footnotes

78 513 U.S. 454 (1995) .
79 The plaintiff class consisted of all Executive Branch employees below grade GS–16. Also covered by the ban were senior executives, Members of Congress, and other federal officers, but the possibility of improprieties by these groups did not justify application of the ban to “the vast rank and file of federal employees below grade GS–16.”
80 513U.S. at 477 513U.S. at 477.
81 Board of County Comm’rs v. Umbehr, 518 U.S. 668, 673 (1996) .
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