First Amendment: Public Employees and the Petition Clause

In Borough of Duryea v. Guarnieri (09-0146), the Court incorporated a "public concern" limitation into public employees' First Amendment right of petition in disputes with their employers.  In so doing, the Court resolved a split of authority among the U.S. Courts of Appeals.

This case grew out of an employment dispute between Charles Guarnieri and the Borough of Duryea, Pennsylvania.  After an initial attempt to terminate Guarnieri from his position as chief of police was determined by an arbitrator to involve procedural errors, the Borough Council issued a series of directives to instruct Guarnieri in the performance of his duties.  Guarnieri sued the Borough, the Borough Council, and individual members of the Council under 42 U.S.C. § 1983, alleging that the directives were issued as retaliation for his filing of the union grievance that resulted in his reinstatement.  Guarnieri claimed that his union grievance and his § 1983 suit were petitions protected by the First Amendment. 

In an opinion joined by Chief Justice Roberts and by Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan, Justice Kennedy drew on the history of the First Amendment and on analogies to Speech Clause jurisprudence in concluding that the Petition Clause only protects public employee activity involving matters of public concern.  To hold otherwise, the Court concluded, would involve the judiciary in wide-ranging supervision of governmental employment activity, raising significant constitutional concerns and unduly burdening the legitimate exercise of governmental authority.

Justices Thomas and Scalia disagreed with the decision to draw the public concern limitation into Petition Clause jurisprudence.  They would prefer a principle that identifies First Amendment petitions by the fact that they address the governmental entity as sovereign, rather than as employer.  Justice Scalia also expressed doubts about whether a lawsuit should be regarded as a "petition" for purposes of the First Amendment.