|United States v. National Treasury Employees Union (93-1170), 513 U.S. 454 (1995). |
[ Rehnquist ]
[ Stevens ]
[ O'Connor ]
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
UNITED STATES, et al., PETITIONERS v. NATIONAL
TREASURY EMPLOYEES UNION et al.
on writ of certiorari to the united states court of appeals for the district of columbia circuit
In 1967 Congress authorized the appointment every four years of a special Commission on Executive, Legislative, and Judicial Salaries, whose principal function would be to recommend appropriate levels of compensation for the top positions in all three branches of the Federal Government. Each of the first five quadrennial commissions recommended significant salary increases, but those recommendations went largely ignored. The Report of the 1989 Quadrennial Commission, however, was instrumental in leading to the enactment of the Ethics Reform Act of 1989, [n.1] which contains the provision challenged in this case.
The 1989 Quadrennial Commission's report noted that inflation had decreased the salary levels for senior Government officials, measured in constant dollars, by approximately 35% since 1969. The report
"also found that because their salaries are so inadequate, many members of Congress are supplementing their official compensation by accepting substantial amounts of `honoraria' for meeting with interest groups which desire to influence their votes. Albeit to a less troubling extent, the practice of accepting honoraria also extends to top officials of the Executive and Judicial branches." Fairness for Our Public Servants: Report of The 1989 Commission on Executive, Legislative and Judicial Salaries vi (Dec. 1988).
Accordingly, the Commission recommended that "salary levels for top officials be set at approximately the same amount in constant dollars" as those in effect in 1969 and further that "Congress enact legislation abolishing the practice of accepting honoraria in all three branches." Ibid.
The President's Commission on Federal Ethics Law Reform subsequently issued a report that endorsed the Quadrennial Commission's views. The President's Commission recommended enacting a ban on receipt of honoraria "by all officials and employees in all three branches of government." To Serve With Honor: Report of the President's Commission on Federal Ethics Law Reform 36 (Mar. 1989). Explaining the breadth of its proposal, it added:
"In recommending this ban, we also recognize, as did the Quadrennial Commission, that the statutory definition of honoraria must be broad enough to-- `close present and potential loopholes such as receipt of consulting, professional or similar fees; payments for serving on boards; travel; sport, or other entertainment expenses not reasonably necessary for the appearance involved; or any other benefit that is the substantial equivalent of an honorarium.' " Ibid. (quoting Fairness for Our Public Servants, at 24).
Although not adopted in their entirety, the two Commissions' recommendations echo prominently in the Ethics Reform Act of 1989. Section 703 of that Act provided a 25% pay increase to Members of Congress, federal judges, and Executive Branch employees above the salary grade GS-15. [n.2] See 103 Stat., at 1768. Another section--the one at issue here--amended §501(b) of the Ethics in Government Act of 1978 to create an "Honoraria Prohibition," which reads: "An individual may not receive any honorarium while that individual is a Member, officer or employee." Id., at 1760.
Section 505 of the Ethics Reform Act defined "officer or employee" to include nearly all employees of the Federal Government and "Member" to include any Representative, Delegate, or Resident Commissioner to Congress. The Congressional Operations Appropriations Act, 1991 [n.3] extended both the salary increase and the prohibition against honoraria to the Senate. The 1989 Act defined "honorarium" to encompass any compensation paid to a Government employee for "an appearance, speech or article." [n.4] The 1991 Appropriations Act amended that definition to exclude any series of appearances, speeches, or articles unrelated to the employee's official duties or status. The definition now reads as follows:
"(3) The term `honorarium' means a payment of money or any thing of value for an appearance, speech or article (including a series of appearances, speeches, or articles if the subject matter is directly related to the individual's official duties or the payment is made because of the individual's status with the Government) by a Member, officer or employee, excluding any actual and necessary travel expenses incurred by such individual (and one relative) to the extent that such expenses are paid or reimbursed by any other person, and the amount otherwise determined shall be reduced by the amount of any such expenses to the extent that such expenses are not paid or reimbursed." 5 U. S. C. App. §505(3) (1988 ed., Supp. V).
Section 503(2) of the Ethics Reform Act provides that the statutory provisions governing honoraria for employees of the Executive Branch shall be subject to rules and regulations issued by the Office of Government Ethics (OGE) and administered by designated agency ethics officials. 5 CFR § 2636.201 et seq. (1994). OGE's regulations permit reimbursement of certain expenses associated with appearances, speeches, and articles. The regulations also confine the reach of each of those terms. Thus, a performance using "an artistic, athletic or other such skill or talent" is not an "appearance"; reading a part in a play or delivering a sermon is not a "speech"; and works of "fiction, poetry, lyrics, or script" are not "articles." Id. §§2636.203(b), (d). The regulations permit teaching a course involving multiple presentations at an accredited program or institution.
The Attorney General may enforce the prohibition against honoraria by a civil action to recover a penalty of not more than the larger of $10,000 or the amount of the honorarium. If an employee has accepted an honorarium in good-faith reliance on an opinion of either the OGE or the ethics officer of her employing agency, she is not subject to the civil penalty. 5 U. S. C. App. §504 (1988 ed., Supp. V).
Two unions and several career civil servants employed full-time by various Executive departments and agencies filed suit in the United States District Court for the District of Columbia to challenge the constitutionality of the honoraria ban. Pursuant to a stipulation with the Government, the District Court certified respondent National Treasury Employees Union as the representative of a class composed of all Executive Branch employees "below grade GS-16, who--but for 5 U. S. C. app. 501(b)--would receive `honoraria' as defined in 5 U. S. C. app. 505(3)." App. 124-125. [n.5] All of the individual respondents save one are members of the class; the exception is a grade GS-16 lawyer for the Nuclear Regulatory Commission who has published articles about Russian history.
Each of the individual respondents alleges that he or she has in the past received compensation for writing or speaking on various topics in full compliance with earlier ethics regulations. The record contains a number of affidavits describing respondents' past activities that the honoraria ban would now prohibit. A mail handler employed by the Postal Service in Arlington, Virginia had given lectures on the Quaker religion for which he received small payments that were "not much, but enough to supplement my income in a way that makes a difference." Id., at 47. An aerospace engineer employed at the Goddard Space Flight Center in Greenbelt, Maryland had lectured on black history for a fee of $100 per lecture. Id., at 63. A microbiologist at the Food and Drug Administration had earned almost $3,000 per year writing articles and making radio and television appearances reviewing dance performances. Id., at 77. A tax examiner employed by the Internal Revenue Service in Ogden, Utah had received comparable pay for articles about the environment. Id., at 67.
The District Court granted respondents' motion for summary judgment, held the statute "unconstitutional insofar as it applies to Executive Branch employees of the United States government," and enjoined the Government from enforcing the statute against any Executive Branch employee. 788 F. Supp. 4, 13-14 (1992). The court acknowledged that Congress' interest in promoting "the integrity of, and popular confidence in and respect for, the federal government" is "vital." Id., at 9. The court also characterized §501(b) as a content neutral restriction on the speech of "government employees who, as a condition of their employment, have relinquished certain First Amendment prerogatives. . . ." Id., at 10. Nevertheless, the court concluded that "regulatory legislation having the effect of suppressing freedom of expression to the slightest degree" could "go no farther than necessary to accomplish its objective." Ibid. The court found the statute both overinclusive, because it restricts so much speech, and underinclusive, because it prohibits honoraria for some forms of speech and not others. Id., at 11. Concluding from the legislative history that Congress had been concerned mainly about appearances of impropriety among its own Members, the court found the application of §501(b) to the parties before it severable from the remainder of the Act.
The Court of Appeals affirmed. 990 F. 2d 1271 (CADC 1993). It noted that, even though §501(b) prohibits no speech, the denial of compensation places a significant burden on employees. The Court held that the Government's strong, undisputed interest "in protecting the integrity and efficiency of public service and in avoiding even the appearance of impropriety created by abuse of the practice of receiving honoraria" does not justify a substantial burden on speech that does not advance that interest. Id., at 1274. The Court emphasized that the Government's failure as to many respondents to identify "some sort of nexus between the employee's job and either the subject matter of the expression or the character of the payor" undercut its proffered concern about actual or apparent improprieties. Id., at 1275. [n.6] Stressing the absence of evidence of either corruption or the appearance of corruption among lower level federal employees receiving honoraria with no connection to their employment, the Court of Appeals concluded that the Government had failed to justify the ban's burden on their speech. Id., at 1277. The Court rejected the Government's argument that administrative and enforcement difficulties justify §501(b)'s broad prophylactic rule. [n.7]
Turning to the question of remedy, the Court of Appeals agreed with the District Court that §501(b)'s application to Executive Branch employees is severable from the remainder of the statute. The legislative history convinced the Court that Congress had adopted the honoraria ban primarily in response to the growing concern about payments to its own Members; moreover, the statute itself disclosed that "the honorarium ban was adopted as part of a package of which a key ingredient was a sharp increase in the salary of members of Congress, judges, and a limited class of senior executive branch officials." Id., at 1278 (citation omitted). Accordingly, the Court fashioned a remedy that, in effect, rewrote the statute by eliminating the words "officer or employee" from §501(b) "except in so far as those terms encompass members of Congress, officers and employees of Congress, judicial officers and judicial employees." Id., at 1279. [n.8]
Over two dissents, the Court of Appeals denied a petition for rehearing en banc. 3 F. 3d 1555 (1993). We granted certiorari. 511 U. S. ___ (1994).
Federal employees who write for publication in their spare time have made significant contributions to the marketplace of ideas. They include literary giants like Nathaniel Hawthorne and Herman Melville, who were employed by the Customs Service; Walt Whitman, who worked for the Departments of Justice and Interior; and Bret Harte, an employee of the mint. [n.9] Respondents have yet to make comparable contributions to American culture, but they share with these great artists important characteristics that are relevant to the issue we confront.
Even though respondents work for the Government, they have not relinquished "the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest." Pickering v. Board of Ed. of Township High School Dist., 391 U.S. 563, 568 (1968). They seek compensation for their expressive activities in their capacity as citizens, not as Government employees. They claim their employment status has no more bearing on the quality or market value of their literary output than it did on that of Hawthorne or Melville. With few exceptions, the content of respondents' messages has nothing to do with their jobs and does not even arguably have any adverse impact on the efficiency of the offices in which they work. They do not address audiences composed of co workers or supervisors; instead, they write or speak for segments of the general public. Neither the character of the authors, the subject matter of their expression, the effect of the content of their expression on their official duties, nor the kind of audiences they address has any relevance to their employment.
In Pickering and a number of other cases we have recognized that Congress may impose restraints on the job related speech of public employees that would be plainly unconstitutional if applied to the public at large. See, e.g., Snepp v. United States, 444 U.S. 507 (1980). When a court is required to determine the validity of such a restraint, it must "arrive at a balance between the interests of the [employee], 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." Pickering, 391 U. S., at 568.
In such cases, which usually have involved disciplinary actions taken in response to a government employee's speech, we have applied Pickering's balancing test only when the employee spoke "as a citizen upon matters of public concern" rather than "as an employee upon matters only of personal interest." Connick v. Myers, 461 U.S. 138, 147 (1983) (emphasis added). Thus, private speech that involves nothing more than a complaint about a change in the employee's own duties may give rise to discipline without imposing any special burden of justification on the government employer. Id., at 148-149. If, however, the speech does involve a matter of public concern, the Government bears the burden of justifying its adverse employment action. Rankin v. McPherson, 483 U.S. 378, 388 (1987); [n.10] see also Waters v. Churchill, 511 U. S. ___, ___ (1994) (slip op., at 11). Respondents' expressive activities in this case fall within the protected category of citizen comment on matters of public concern rather than employee comment on matters related to personal status in the workplace. The speeches and articles for which they received compensation in the past were addressed to a public audience, were made outside the workplace, and involved content largely unrelated to their government employment.
The sweep of §501(b) makes the Government's burden heavy. Unlike Pickering and its progeny, this case does not involve a post hoc analysis of one employee's speech and its impact on that employee's public responsibilities. Cf. Waters v. Churchill, 511 U. S. ___ (1994); Rankin v. McPherson, 483 U.S. 378 (1987); Connick v. Myers, 461 U.S. 138 (1983); Perry v. Sindermann, 408 U.S. 593 (1972). Rather, the Government asks us to apply Pickering to Congress' wholesale deterrent to a broad category of expression by a massive number of potential speakers. [n.11] In Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 564 (1973), we established that the Government must be able to satisfy a balancing test of the Pickering form to maintain a statutory restriction on employee speech. Because the discussion in that case essentially restated in balancing terms our approval of the Hatch Act in Public Workers v. Mitchell, 330 U.S. 75 (1947), we did not determine how the components of the Pickering balance should be analyzed in the context of a sweeping statutory impediment to speech. [n.12]
We normally accord a stronger presumption of validity to a congressional judgment than to an individual executive's disciplinary action. See Turner Broadcasting System, Inc. v. FCC, 512 U. S. ___, ___, and n. 2 (1994) (slip op., at 2, and n. 2) (Stevens, J., concurring in part and concurring in judgment). The widespread impact of the honoraria ban, however, gives rise to far more serious concerns than could any single supervisory decision. See City of Ladue v. Gilleo, 512 U. S. ___, ___ (1994) (slip op., at 10-11). [n.13] In addition, unlike an adverse action taken in response to actual speech, this ban chills potential speech before it happens. Cf. Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931). For these reasons, the Government's burden is greater with respect to this statutory restriction on expression than with respect to an isolated disciplinary action. The Government must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression's "necessary impact on the actual operation" of the Government. Pickering, 391 U. S., at 571.
Although §501(b) neither prohibits any speech nor discriminates among speakers based on the content or viewpoint of their messages, its prohibition on compensation unquestionably imposes a significant burden on expressive activity. See Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991); see also Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 227-231 (1987); Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983). Publishers compensate authors because compensation provides a significant incentive toward more expression. [n.14] By denying respondents that incentive, the honoraria ban induces them to curtail their expression if they wish to continue working for the Government. [n.15]
The ban imposes a far more significant burden on respondents than on the relatively small group of lawmakers whose past receipt of honoraria motivated its enactment. The absorbing and time consuming responsibilities of legislators and policymaking executives leave them little opportunity for research or creative expression on subjects unrelated to their official responsibilities. Such officials often receive invitations to appear and talk about subjects related to their work because of their official identities. In contrast, invitations to rank and file employees usually depend only on the market value of their messages. The honoraria ban is unlikely to reduce significantly the number of appearances by high-ranking officials as long as travel expense reimbursement for the speaker and one relative is available as an alternative form of remuneration. See infra, at 20-21, and n. 19. In contrast, the denial of compensation for lower paid, nonpolicymaking employees will inevitably diminish their expressive output.
The large scale disincentive to Government employees' expression also imposes a significant burden on the public's right to read and hear what the employees would otherwise have written and said. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756-757 (1976). We have no way to measure the true cost of that burden, but we cannot ignore the risk that it might deprive us of the work of a future Melville or Hawthorne. [n.16] The honoraria ban imposes the kind of burden that abridges speech under the First Amendment.
Because the vast majority of the speech at issue in this case does not involve the subject matter of government employment and takes place outside the workplace, the Government is unable to justify §501(b) on the grounds of immediate workplace disruption asserted in Pickering and the cases that followed it. Cf., e.g.,Waters, 511 U. S., at ___ (slip op., at 1-2). Instead, the Government submits that the ban comports with the First Amendment because the prohibited honoraria were "reasonably deemed by Congress to interfere with the efficiency of the public service." United Public Workers v. Mitchell, 330 U.S. 75, 101 (1947).
In Mitchell we upheld the prohibition of the Hatch Act, 5 U.S.C. § 7324(a)(2), on partisan political activity by all classified federal employees, including, for example, a skilled mechanic at the Mint named Poole who had no policymaking authority. We explained that "[t]here are hundreds of thousands of United States employees with positions no more influential upon policy determination than that of Mr. Poole. Evidently what Congress feared was the cumulative effect on employee morale of political activity by all employees who could be induced to participate actively." 330 U. S., at 101. In Civil Service Commn. v. Letter Carriers, 413 U.S. 548 (1973), we noted that enactment of the Hatch Act in 1939 reflected "the conviction that the rapidly expanding Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political machine." Id., at 565. An equally important concern was
"to further serve the goal that employment and advancement in the Government service not depend on political performance, and at the same time to make sure that Government employees would be free from pressure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs." Id., at 566.
Thus, the Hatch Act aimed to protect employees' rights, notably their right to free expression, rather than to restrict those rights. [n.17] Like the Hatch Act, the honoraria ban affects hundreds of thousands of federal employees. Unlike partisan political activity, however, honoraria hardly appear to threaten employees' morale or liberty. Moreover, Congress effectively designed the Hatch Act to combat demonstrated ill effects of Government employees' partisan political activities. In contrast, the Government has failed to show how it serves the interests it asserts by applying the honoraria ban to respondents.
The Government's underlying concern is that federal officers not misuse or appear to misuse power by accepting compensation for their unofficial and nonpolitical writing and speaking activities. This interest is undeniably powerful, but the Government cites no evidence of misconduct related to honoraria in the vast rank and file of federal employees below grade GS-16. [n.18] Instead of a concern about the "cumulative effect" of a widespread practice that Congress deemed to "menace the integrity and the competency of the service," Mitchell, 330 U. S., at 103, the Government relies here on limited evidence of actual or apparent impropriety by legislators and high level executives, together with the purported administrative costs of avoiding or detecting lower level employees' violations of established policies.
As both the District Court and the Court of Appeals noted, the Government has based its defense of the ban on abuses of honoraria by Members of Congress. 990 F. 2d, at 1278; 788 F. Supp., at 13. [n.19] Congress reasonably could assume that payments of honoraria to judges or high ranking officials in the Executive Branch might generate a similar appearance of improper influence. Congress could not, however, reasonably extend that assumption to all federal employees below Grade GS-16, an immense class of workers with negligible power to confer favors on those who might pay to hear them speak or to read their articles. A federal employee, such as a supervisor of mechanics at the mint, might impair efficiency and morale by using political criteria to judge the performance of his or her staff. But one can envision scant harm, or appearance of harm, resulting from the same employee's accepting pay to lecture on the Quaker religion or to write dance reviews.
Although operational efficiency is undoubtedly a vital governmental interest, e.g., Rankin, 483 U. S., at 384, several features of the honoraria ban's text cast serious doubt on the Government's submission that Congress perceived honoraria as so threatening to the efficiency of the entire federal service as to render the ban a reasonable response to the threat. Cf. Waters, 511 U. S., at ___ (slip op., at 14-15). The first is the rather strange parenthetical reference to "a series of appearances, speeches, or articles" that the 1991 amendment inserted in the definition of the term "honorarium." The amended definition excludes such a series from the prohibited category unless "the subject matter is directly related to the individual's official duties or the payment is made because of the individual's status with the Government." See supra, at 4. In other words, accepting pay for a series of articles is prohibited if and only if a nexus exists between the author's employment and either the subject matter of the expression or the identity of the payor. For an individual article or speech, in contrast, pay is taboo even if neither the subject matter nor the payor bears any relationship at all to the author's duties.
Congress' decision to provide a total exemption for all unrelated series of speeches undermines application of the ban to individual speeches and articles with no nexus to Government employment. Absent such a nexus, no corrupt bargain or even appearance of impropriety appears likely. The Government's only argument against a general nexus limitation is that a wholesale prophylactic rule is easier to enforce than one that requires individual nexus determinations. See Brief for United States 21-23. The nexus limitation for series, however, unambiguously reflects a congressional judgment that agency ethics officials and the OGE can enforce the statute when it includes a nexus test. A blanket burden on the speech of nearly 1.7 million federal employees requires a much stronger justification than the Government's dubious claim of administrative convenience.
The definition's limitation of "honoraria" to expressive activities also undermines the Government's submission that the breadth of §501 is reasonably necessary to protect the efficiency of the public service. Both Commissions that recommended the ban stressed the importance of defining honoraria in a way that would close "potential loopholes such as receipt of consulting, professional or similar fees; payments for serving on boards; travel; sport, or other entertainment expenses not reasonably necessary for the appearance involved; or any other benefit that is the substantial equivalent of an honorarium." See supra, at 3. Those recommendations reflected a considered judgment that compensation for "an appearance, speech or article" poses no greater danger than compensation for other services that a Government employee might perform in his or her spare time. [n.20] Congress, however, chose to restrict only expressive activities. One might reasonably argue that expressive activities, because they occupy a favored position in the constitutional firmament, should be exempt from even a comprehensive ban on outside income. Imposing a greater burden on speech than on other off duty activities assumed to pose the same threat to the efficiency of the federal service is, at best, anomalous.
The fact that §501 singles out expressive activity for special regulation heightens the Government's burden of justification. See Minneapolis Star, 460 U. S., at 583. As we noted last Term when reviewing the Federal Communications Commission's must carry rules for cable television systems, "[w]hen the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply `posit the existence of the disease sought to be cured.' . . . It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Turner Broadcasting System, 512 U. S., at ___ (slip op., at 40-41). That case dealt with a direct regulation of communication by private entities, but its logic applies as well to the special burden §501 imposes on the expressive rights of the multitude of employees it reaches. As Justice Brandeis reminded us, a "reasonable" burden on expression requires a justification far stronger than mere speculation about serious harms. "Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. . . . To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced." Whitney v. California, 274 U.S. 357, 376 (1927) (concurring opinion). [n.21] The Government has not persuaded us that §501(b) is a reasonable response to the posited harms.
We also attach significance to the OGE regulations that limit the coverage of the statutory terms "appearance, speech or article." 5 CFR § 2636.203 (1994). The regulations exclude a wide variety of performances and writings that would normally appear to have no nexus with an employee's job, such as sermons, fictional writings, and athletic competitions, see supra, at 5, countermanding the Commissions' recommendation that an even more inclusive honoraria ban would be appropriate. See supra, at 3. The exclusions, of course, make the task of the OGE and agency ethics officials somewhat easier, but they "diminish the credibility of the government's rationale" that paying lower level employees for speech entirely unrelated to their work jeopardizes the efficiency of the entire federal service. City of Ladue, 512 U. S., at ___ (slip op., at 9). We recognize our obligation to defer to considered congressional judgments about matters such as appearances of impropriety, but on the record of this case we must attach greater weight to the powerful and realistic presumption that the federal work force consists of dedicated and honorable civil servants. The exclusions in the OGE regulations are more consistent with that presumption than with the honoraria ban's dubious application not merely to policymakers, whose loss of honoraria was offset by a salary increase, but to all Executive Branch employees below Grade GS-16 as well.
These anomalies in the text of the statute and regulations underscore our conclusion: the speculative benefits the honoraria ban may provide the Government are not sufficient to justify this crudely crafted burden on respondents' freedom to engage in expressive activities. Section 501(b) violates the First Amendment.
After holding §501(b) invalid because it was not as carefully tailored as it should have been, the Court of Appeals approved a remedy that is itself arguably overinclusive. The relief granted by the District Court and upheld by the Court of Appeals enjoined enforcement of the entire honoraria ban as applied to the entire Executive Branch of the Government. [n.22] That injunction provides relief to senior executives who are not parties to this case. It also prohibits enforcement of the statute even when an obvious nexus exists between the employee's job and either the subject matter of his or her expression or the interest of the person paying for it. As an alternative to its request for outright reversal, the Government asks us to modify the judgment by upholding the statute as it applies, first, to employees not party to this action and, second, to situations in which a nexus is present.
For three reasons, we agree with the Government's first suggestion--that the relief should be limited to the parties before the Court. First, although the occasional case requires us to entertain a facial challenge in order to vindicate a party's right not to be bound by an unconstitutional statute, see, e.g., Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 965-967, and n. 13 (1984), we neither want nor need to provide relief to nonparties when a narrower remedy will fully protect the litigants. See Board of Trustees of State University of N.Y. v. Fox, 492 U.S. 469, 484-485 (1989). In this case, granting full relief to respondents--who include all Executive Branch employees below Grade GS-16--does not require passing on the applicability of §501(b) to the senior executives who received a 25 percent salary increase that offsets the honoraria ban's disincentive to speak and write. Second, the Government conceivably might advance a different justification for an honoraria ban limited to more senior officials, thus presenting a different constitutional question than the one we decide today. [n.23] Our policy of avoiding unnecessary adjudication of constitutional issues, see Ashwander v. TVA, 297 U.S. 288, 346-347(1936) (Brandeis, J., concurring), therefore counsels against determining senior officials' rights in this case. Third, as the Court of Appeals recognized, its remedy required it to tamper with the text of the statute, [n.24] a practice we strive to avoid.
Our obligation to avoid judicial legislation also persuades us to reject the Government's second suggestion--that we modify the remedy by crafting a nexus requirement for the honoraria ban. We cannot be sure that our attempt to redraft the statute to limit its coverage to cases involving an undesirable nexus between the speaker's official duties and either the subject matter of the speaker's expression or the identity of the payor would correctly identify the nexus Congress would have adopted in a more limited honoraria ban. We cannot know whether Congress accurately reflected its sense of an appropriate nexus in the terse, 33-word parenthetical statement with which it exempted series of speeches and articles from the definition of honoraria in the 1991 amendment, see supra, at 4; in an elaborate, nearly 600-word provision with which it later exempted Department of Defense military school faculty and students from the ban; [n.25] or in neither. The process of drawing a proper nexus, even more than the defense of the statute's application to senior employees, would likely raise independent constitutional concerns whose adjudication is unnecessary to decide this case. Cf. supra, at 24. We believe the Court of Appeals properly left to Congress the task of drafting a narrower statute. [n.26]
Insofar as the judgment of the Court of Appeals affirms the injunction against enforcement of §501(b) against respondents, it is affirmed; insofar as it grants relief to parties not before the Court, it is reversed. The case is remanded for further proceedings consistent with this opinion.
It is so ordered.
1 103 Stat. 1760, 5 U. S. C. App. §101 et seq. (1988 ed., Supp. V). The 1989 statute is a comprehensive amendment of the Ethics in Government Act of 1978 , 92 Stat. 1824. The provisions of the Act governing outside income, including honoraria, are codified at 5 U. S. C. App. § 501 et seq. (1988 ed., Supp. V).
4 The original definition read as follows: "(3) The term `honorarium' means a payment of money or any thing of value for an appearance, speech or article by a Member, officer or employee, excluding any actual and necessary travel expenses incurred by such individual (and one relative) to the extent that such expenses are paid or reimbursed by any other person, and the amount otherwise determined shall be reduced by the amount of any such expenses to the extent that such expenses are not paid or reimbursed." 103 Stat. 1761, 1762.
5 In 1993, employees in the certified class earned between $11,903 (GS-1, step 1) and $86,589 (GS-15, step 10). 5 U.S.C. § 5332. According to OPM, the mean grade was GS 9, which paid workers between $27,789 and $36,123. Office of Personnel Management, Demographic Profile of the Federal Workforce App. 2 (1992).
6 The Court of Appeals acknowledged that "even some of the plaintiffs receive payments that might at least raise an eyebrow," citing a business editor for the Voice of America who received payment for business analysis and a GS 7 "tax examining assistant" as to whom payment of any honorarium might raise some concern "[i]n view of the universality of citizens' subjection to the Internal Revenue Service." 990 F. 2d, at 1275-76. Another plaintiff whose expressive activities appear to come within a nexus to Government employment is the Treasury Employees' Union itself, which complains that the honoraria ban has hindered publication of its chapters' newsletters. App. 58-62.
7 "As summarized in testimony before the Senate Committee on Governmental Affairs, the prior regulations allowed honoraria so long as the speaker or writer held a rank lower than GS-16 and all of the following questions could be answered negatively:
"(1) Is the honorarium offered for carrying out government duties or for an activity that focuses specifically on the employing agency's responsibilities, policies and programs?
"(2) Is the honorarium offered to the government employee or family member because of the official position held by the employee?
"(3) Is the honorarium offered because of the government information that is being imparted?
"(4) Is the honorarium offered by someone who does business with or wishes to do business with the employee in his or her official capacity? "(5) Were any government resources or time used by the employee to produce the materials for the article or speech or make the appearance? "S. Rep. No. 29, 102d Cong., 1st Sess., at 8 (1991). While some of the limits may have an amorphous quality about them (such as the one purporting to probe the motive of the honorarium's offeror), there appears no actual experience of difficulty, and one can hypothesize rules of thumb that could constrain government discretion." 990 F. 2d, at 1276-1277.
8 In dissent, Judge Sentelle maintained that the statute was constitutional. He also objected to the Court's remedy. In his opinion, the majority's severance of the statutory provisions relating to the Executive Branch was "nothing less than judicial legislation," 990 F. 2d, at 1296 (citation and internal quotation marks omitted), and its reluctance to invalidate the honoraria ban as to Members of Congress would have been "better served by striking the statute down as applied" to the plaintiff class. Id., at 1298.
9 See A. Turner, Nathaniel Hawthorne: A Biography 170-187 (1980); N. Arvin, Herman Melville 259-260 (1950); G. Allen, The Solitary Singer: A Critical Biography of Walt Whitman 319-321, 408 (1985); H. Merwin, The Life of Bret Harte 33-34 (1911).
10 Rankin is the only case in which we directly applied the Pickering balance to speech whose content had nothing to do with the workplace. The employee in that case was fired based on a statement in the workplace about an assassination attempt on the President. Satisfied that the statement was not a threat to kill the President, which the First Amendment would not have protected, we concluded that the statement involved a matter of public concern and that the firing violated the First Amendment. Rankin, 483 U. S., at 386-387, 392.
11 The dissent seems to regard the honoraria ban as less onerous than our applications of Pickering to the speech of individual employees because the ban "is unrelated to the message or the viewpoint expressed by the government employee." Post, at 12. Our Pickering cases only permit the Government to take adverse action based on employee speech that has adverse effects on "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U. S., at 568. That certain messages may be more likely than others to have such adverse effects does not render Pickering's restriction on speech viewpoint based. Even a teacher's persistent advocacy in favor of the actions of the school board, cf. ibid., or an employee's exhortation against an attempt on the President's life, cf. Rankin v. McPherson, 483 U.S. 378 (1987), could provide proper grounds for adverse action if the Government employer could demonstrate that such expression disrupted workplace efficiency. The honoraria ban as applied to respondents burdens speech far more than our past applications of Pickering because the ban deters an enormous quantity of speech before it is uttered, based only on speculation that the speech might threaten the Government's interests.
12 Two decades ago, a three Justice plurality invoked Pickering in the course of upholding against vagueness and overbreadth challenges a provision of the Lloyd LaFollette Act, 5 U.S.C. § 7501(a) (1970 ed.), that allowed the discharge of certain federal employees "only for such cause as will promote the efficiency of the [civil] service." Arnett v. Kennedy, 416 U.S. 134, 160-161 (1974). The plaintiff in that case stood accused of several work related misdeeds, including making false and defamatory statements against co workers. The plurality characterized the employee's false accusation that his superiors had accepted a bribe as "not protected by the First Amendment." Id., at 158-159. Thus, the Arnett plurality merely cited Pickering to support a general statute's post hoc application to a single employee's arguably unprotected speech.
13 As of September 30, 1992, the Federal Government employed 1,680,516 workers between grades GS-1 and GS-15. Office of Personnel Management, Demographic Profile of the Federal Workforce App. 2 (1992).
14 This proposition is self evident even to those who do not fully accept Samuel Johnson's cynical comment: " `No man but a blockhead ever wrote, except for money.' " J. Boswell, Life of Samuel Johnson LL.D. 302 (R. Hutchins ed. 1952).
15 Several respondents indicated that the ban would compel them to discontinue their previously compensated expressive activities. App. 46, 50-51, 55, 66, 69, 74. In at least one case, a newspaper refused to continue publishing a respondent's work if he could not accept pay for it. Id., at 78. Despite the OGE regulations' provision for recovery of certain expenses related to expressive activity, see supra, at 4-5, several respondents also reported that the ban would prevent or complicate their recovering other necessary expenses, creating a further disincentive to speak and write. App. 45-46, 55-56, 65, 74-75, 81, 84, 88.
16 These authors' familiar masterworks would survive the honoraria ban as currently administered. Besides exempting all books, the OGE regulations protect fiction and poetry from the ban's coverage, see infra, at 22, although the statute's language is not so clear. But great artists deal in fact as well as fiction, and some deal in both. See, e.g., Allen, The Solitary Singer, at 41-55 (discussing Walt Whitman's speeches and nonfiction newspaper writing).
17 Cf. Arnett, 416 U. S., at 159 (Lloyd LaFollette Act's purpose was "to give myriad different federal employees performing widely disparate tasks a common standard of job protection").
18 The Government cites a report of the General Accounting Office (GAO) to support its assertion that the ban is necessary to prevent widespread improprieties. General Accounting Office, Report to the Chairman, Subcomm. on Federal Services, Post-Office and Civil Service of the Senate Comm. on Governmental Affairs, Employee Conduct Standards: Some Outside Activities Present Conflict of Interest Issues (Feb. 1992) (hereinafter GAO Report); see Brief for United States 22-23. The GAO Report found that ethics officials at several large agencies had approved 545 outside speaking activities between 1988 and 1990. GAO Report, at 8. Over one third of the total approved activities dealt with subject matter, or involved duties, similar to the employees' Government work. Id., at 58. The Report's conclusions and recommendations dealt exclusively with the problems of outside activities "that were focused specifically on the agencies' responsibilities and/or related directly to the employees' duties." Id., at 13-14. The Report's examples of instances that gave rise to serious concerns about real or apparent impropriety were two cases in which high level employees (a chemist and a physicist) engaged in consulting activities related to the subject matter of their jobs. Id., at 10. Its 112 pages contain not one mention of any real or apparent impropriety related to a lower level employee or to any employee engaged in writing or speaking or in any conduct unrelated to his or her Government job.
19 Portending this reliance, the primary discussion of honoraria in the 1989 Quadrennial Commission's Report appeared as a subtopic in the "Legislative Branch" section. Fairness for Our Public Servants: The Report of The 1989 Commission on Executive, Legislative and Judicial Salaries 24 (Dec. 1988).
20 The Government relies heavily on the Reports of both the Quadrennial Commission and the President's Commission in defending §501(b). See Brief for United States 3-5, 19-20.
21 "[W]e have consistently given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large." Waters v. Churchill, 511 U. S. ___, ___ (slip op., at 10) (1994) (plurality opinion). However, the cases in which we have done so generally have involved isolated instances of speech that had already happened. See, e.g., Connick v. Myers, 461 U.S. 138, 151-152 (1983). We deferred to the Government's predictions in upholding the Hatch Act, see Public Workers v. Mitchell, 330 U.S. 75, 100-101 (1947), but that statute's employee protective rationale provided much stronger justification for a proscriptive rule than does the Government's interest in workplace efficiency. See supra, at 15-16. Deferring to the Government's speculation about the pernicious effects of thousands of articles and speeches yet to be written or delivered would encroach unacceptably on the First Amendment's protections. Cf. Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. 480, 498 (1985) (statute restricting political contributions violated First Amendment where "exchange of political favors for uncoordinated expenditures remain[ed] a hypothetical possibility and nothing more").
22 The Court of Appeals did not reach the ban's applications to employees of the Legislative and Judicial Branches because its analysis of the legislative history convinced it that, had Congress believed the ban unconstitutional as to the Executive Branch, it still would have applied the ban to the other branches. 990 F. 2d, at 1279.
23 The parties to whom the lower courts granted relief include a single GS-16 employee. See supra, at 5-6. The rationale we have set forth for our holding does not necessarily apply to him. However, the Government does not request, as part of its suggested alternative to outright reversal, that we reverse the Court of Appeals' judgment as to that one employee. Accordingly, we leave that part of the court's judgment intact.
24 The Court of Appeals said: "We cannot, as a technical matter, achieve the intended severance simply by striking the words `officer or employee' from §501(b), as that would invalidate the ban beyond the executive branch. . . . However, given the far greater congressional interest in banning honoraria for the legislative and judicial branches, we think it a proper form of severance to strike `officer or employee' from §501(b) except in so far as those terms encompass members of Congress, officers and employees of Congress, judicial officers and judicial employees." 990 F. 2d, at 1279.
25 See §542 of the National Defense Authorization Act for Fiscal Year 1993, 106 Stat. 2413-2414.
26 The dissent condemns our refusal to rewrite the statute. Post, at 14. It notes that, when we considered a challenge to a federal statute that banned expressive displays in the Supreme Court building and on the public sidewalks around it, we had no difficulty striking down the statute only as it applied to the public sidewalks. See United States v. Grace, 461 U.S. 171, 180-83 (1983). Drawing a line between a building and sidewalks with which we are intimately familiar, based on settled First Amendment principles, see id., at 180, is a relatively simple matter. In contrast, drawing one or more lines between categories of speech covered by an overly broad statute, when Congress has sent inconsistent signals as to where the new line or lines should be drawn, involves a far more serious invasion of the legislative domain.