United States v. National Treasury Employees Union (93-1170), 513 U.S. 454 (1995).
[ Rehnquist ]
[ Stevens ]
[ O'Connor ]
HTML version
WordPerfect version
HTML version
WordPerfect version
HTML version
WordPerfect version
HTML version
WordPerfect version

No. 93-1170


on writ of certiorari to the united states court of appeals for the district of columbia circuit

[February 22, 1995]

Chief Justice Rehnquist , with whom Justice Scalia

I believe that the Court's opinion is seriously flawed in two respects. First, its application of the First Amendment understates the weight which should be accorded to the governmental justifications for the honoraria ban and overstates the amount of speech which actually will be deterred. Second, its discussion of the impact of the statute which it strikes down is carefully limited to only a handful of the most appealing individual situations, but when it deals with the remedy it suddenly shifts gears and strikes down the statute as applied to the entire class of Executive Branch employees below grade GS-16. I therefore dissent.

In 1991, in the aftermath of recommendations by two distinguished commissions, Congress adopted its present ban on the receipt of honoraria. Congress defined an "honorarium" as

"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 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).

The ban neither prohibits anyone from speaking or writing, nor does it penalize anyone who speaks or writes; the only stricture effected by the statute is a denial of compensation.

In Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105 (1991), we evaluated the constitutionality of New York's "Son of Sam" law, which regulated an accused or convicted criminal's receipt of income generated by works that described his crime. Id., at 108. We concluded that the law implicated First Amendment concerns because it "impose[d] a financial disincentive only on speech of a particular content." Id., at 116. Because the Son of Sam law was content based, we required the State to demonstrate that the regulation was necessary to serve a compelling state interest and was narrowly drawn to achieve that end. Id., at 118. We determined that the State had failed to meet its burden because the statute was overbroad. Id., at 123.

Unlike the law at issue in Simon & Schuster, the honoraria ban is neither content nor viewpoint based. Ante, at 13; cf. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48 (1986). As a result, the ban does not raise the specter of Government control over the marketplace of ideas. Cf. Simon & Schuster, supra, at 116. To the extent that the honoraria ban implicates First Amendment concerns, the proper standard of review is found in our cases dealing with the Government's ability to regulate the First Amendment activities of its employees.

A public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment. See Pickering v. Board of Ed. of Township High School Dist., 391 U.S. 563, 568 (1968); Connick v. Myers, 461 U.S. 138, 140 (1983). We have emphasized, however, that "the State's interests as an employer in regulating the speech of its employees `differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.' " Ibid. (quoting Pickering, supra, at 568). The proper resolution of these competing interests requires " `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.' " 461 U. S., at 140 (quoting Pickering, supra, at 568). Just last Term, a plurality of the Court explained:

"The key to First Amendment analysis of government employment decisions, then, is this: The government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer. The government cannot restrict the speech of the public at large just in the name of efficiency. But where the government is employing someone for the very purpose of effectively achieving its goals, such restrictions may well be appropriate." Waters v. Churchill, 511 U. S. ___, ___ (1994) (slip op., at 12).

In conducting this balance, we consistently have given substantial weight to government employers' reasonable predictions of disruption, even when the speech involved was on a matter of public concern. Id., at ___,___ (slip op., at 11-12) (plurality opinion). As we noted in Connick, " `the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs.' " 461 U. S., at 151 (quoting Arnett v. Kennedy, 416 U.S. 134, 168 (1978) (Powell, J., concurring in part and concurring in result)).

These principles are reflected in our cases involving governmental restrictions on employees' rights to engage in partisan political activity. [n.1] In Public Workers v. Mitchell, 330 U.S. 75 (1947), we examined §9(a) of the Hatch Act, which prohibited officers and employees in the Executive Branch of the Federal Government, with exceptions, from taking " `any active part in political management or in political campaigns.' " Id., at 78. We analyzed §9(a)'s strictures as applied to the partisan political activities of an industrial employee at the United States Mint, and concluded that "[f]or regulation of employees it is not necessary that the act regulated be anything more than an act reasonably deemed by Congress to interfere with the efficiency of the public service." Id., at 101. Despite the fact that §9(a) barred three million public employees from taking "effective part in campaigns that may bring about changes in their lives, their fortunes, and their happiness," id., at 107 (Black, J., dissenting), we held that if in Congress' judgment "efficiency may be best obtained by prohibiting active participation by classified employees in politics as party officers or workers," there was no constitutional objection, id., at 99.

More than 25 years later, we again addressed the constitutionality of §9(a) of the Hatch Act. In Civil Service Comm'n v. Letter Carriers, 413 U.S. 548 (1973), we "unhesitatingly reaffirm[ed] the Mitchell holding," id., at 556, because "neither the First Amendment nor any other provision of the Constitution invalidate[d] a law barring this kind of partisan political conduct by federal employees," ibid. We applied the balancing approach set forth in Pickering to the Hatch Act's sweeping limitation on partisan political activity, and determined that the balance struck by Congress was "sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act." 413 U. S., at 564. We concluded that "[p]erhaps Congress at some time w[ould] come to a different view of the realities of political life and Government service," but we were in no position to dispute Congress' current view of the matter. Id., at 567.

Although protection of employees from pressure to perform political chores certainly was a concern of the Hatch Act, see ante, at 16, it was by no means the only, or even the most important concern. [n.2] See Letter Carriers, supra, at 566. Rather, the Court recognized that a major thesis of the Hatch Act was that

"to serve this great end of Government--the impartial execution of the laws--it is essential that federal employees . . . not take formal positions in political parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce the hazards to fair and effective government." 413 U. S., at 565.

The Court emphasized that "it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent." Ibid. Thus, the Hatch Act served as a safeguard to both the actual and perceived impartiality and effectiveness of the Federal Government. See Mitchell, supra, at 95-96; Letter Carriers, supra, at 564-567.

Applying these standards to the honoraria ban, I cannot say that the balance that Congress has struck between its interests and the interests of its employees to receive compensation for their First Amendment expression is unreasonable. Cf. Letter Carriers, supra, at 564; Pickering, supra, at 568.

The Court largely ignores the Government's foremost interest--prevention of impropriety and the appearance of impropriety--by focusing solely on the burdens of the statute as applied to several carefully selected Executive Branch employees whose situations present the application of the statute where the Government's interests are at their lowest ebb: a mail handler employed by the Postal Service who lectured on the Quaker religion; an aerospace engineer who lectured on black history; a microbiologist who reviewed dance performances; and a tax examiner who wrote articles about the environment. Ante, at 6. Undoubtedly these are members of the class, but they by no means represent the breadth of the class which includes all " `employee[s]' . . . 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. Nothing in the class certification limits the receipt of honoraria to the activities engaged in by the several employees discussed by the Court. See, e.g., ante, at 7-8, n. 6. This artificially narrow prism of class members, however, is the focus of the Court's entire First Amendment discussion.

The class definition speaks of anyone who would receive an honorarium but for the statute. App. 124-125. An unknown number of these individuals would receive honoraria where there is a nexus between their speech and their Government employment. There is little doubt that Congress reasonably could conclude that its interests in preventing impropriety and the appearance of impropriety in the federal work force outweigh the employees' interests in receiving compensation for expression that has a nexus to their Government employment. Cf. Federal Election Comm'n v. National Right to Work Committee, 459 U.S. 197, 210 (1982) ("The governmental interest in preventing both actual corruption and the appearance of corruption of elected representatives has long been recognized").

The Court relies on cases involving restrictions on the speech of private actors to argue that the Government is required to produce "evidence of misconduct related to honoraria in the vast rank and file of federal employees below grade GS-16." Ante, at 17; ante, at 21-22, and n. 21. [n.3] The Court recognizes, however, that we " `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.' " Ante, at 21, n. 21 (quoting Waters, 511 U. S., at ___ (slip op., at 10) (plurality opinion)).

Prior to enactment of the current honoraria ban, Congress was informed by two distinguished commissions that its previous limitations on honoraria were inadequate. The 1989 Quadrennial Commission on Executive, Legislative and Judicial Salaries (Dec. 1988) recommended that "Congress enact legislation abolishing the practice of accepting honoraria in all three branches." App. 223. The President's Commission on Federal Ethics Law Reform (Mar. 1989) (hereinafter Wilkey Commission) echoed many of the Quadrennial Commission's concerns:

"We recognize that speeches by federal officials can help inform the public or particular groups and may encourage interchange between the public and private sectors. Nevertheless, we can see no justification for perpetuating the current system of honoraria. Honoraria paid to officials can be a camouflage for efforts by individuals or entities to gain the officials' favor. The companies that pay honoraria and related travel expenses frequently deem these payments to be normal business expenses and likely believe that these payments enhance their access to public officials who receive them. . . .

"Although we are aware of no special problems associated with receipt of honoraria within the judiciary, the Commission--in the interest of alleviating abuses in the legislative branch and in applying equitable limitations across the government--joins the Quadrennial Commission in recommending the enactment of legislation to ban the receipt of honoraria by all officials and employees in all three branches of government." Id., at 253-254 (emphasis added).

The Wilkey Commission "recognize[d] that banning honoraria would have a substantial financial cost to many officials," Id., at 254, but determined that "the current ailment is a serious one and that this medicine is no more bitter than is needed to cure the patient." Ibid. The Wilkey Commission also was aware that its recommendations covered not only high level federal employees, [n.4] but it "regard[ed] the current state of affairs as to honoraria in particular as unacceptable in the extreme, and believe[d] that [the Government could not] wait until an unspecified date in the future to end this harmful practice." Id., at 257. [n.5]

The Court concedes that in light of the abuses of honoraria by its Members, Congress could reasonably assume that "payments of honoraria to judges or high ranking officials in the Executive Branch might generate a similar appearance of improper influence," ante, at 18, but it concludes that Congress could not extend this presumption to federal employees below grade GS-16. The theory underlying the Court's distinction--that federal employees below grade GS-16 have negligible power to confer favors on those who might pay to hear them speak or to read their articles--is seriously flawed. Tax examiners, bank examiners, enforcement officials, or any number of federal employees have substantial power to confer favors even though their compensation level is below Grade GS-16.

Furthermore, we rejected the same distinction in Public Workers v. Mitchell:

"There is a suggestion that administrative workers may be barred, constitutionally, from political management and political campaigns while the industrial workers may not be barred, constitutionally, without an act `narrowly and selectively drawn to define and punish specific conduct.' . . . Congress has determined that the presence of government employees, whether industrial or administrative, in the ranks of political party workers is bad. Whatever differences there may be between administrative employees of the government and industrial workers in its employ are differences in detail so far as the constitutional power under review is concerned. Whether there are such differences and what weight to attach to them, are all matters of detail for Congress." 330 U. S., at 102.

Congress was not obliged to draw an infinitely filigreed statute to deal with every subtle distinction between various groups of employees. See Letter Carriers, 413 U. S., at 556; Mitchell, supra, at 99.

The Court dismisses the Hatch Act experience as irrelevant, because it aimed to protect employees' rights, notably their right to free expression, rather than to restrict those rights. Ante, at 16-17. This is, indeed, a strange characterization of §9(a) of the Hatch Act. It prohibited officers and employees in the Executive Branch of the Federal Government from taking " `any active part in political management or in political campaigns.' " Mitchell, supra, at 78. The penalty for violation was dismissal from office. 330 U. S., at 79. Since the right to participate in a political campaign is surely secured in the abstract by the First Amendment, see, e.g., Buckley v. Valeo, 424 U.S. 1, 15 (1976) (per curiam), it can hardly be said that the Act protected the rights of workers who wished to engage in partisan political activity. One of the purposes of the Act was assuredly to free employees who did not wish to become engaged in politics from requests by their superiors to contribute money or time, but to the extent the Act protected these employees it undoubtedly limited the First Amendment rights of those who did wish to take an active part in politics.

The Government's related concern regarding the difficulties that would attach in administering a case by case analysis of the propriety of particular honoraria also supports the honoraria ban's validity. As we emphasized in Waters, "[t]he government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer." 511 U. S., at ___ (slip op., at 12). Congress reasonably determined that the prior ethics regime, which required these case by case determinations, was inadequate. See App. 257 ("[T]he current state of affairs as to honoraria [is] unacceptable in the extreme"). As a subsequent 1992 GAO Report confirmed, individual ethics officers and various agencies gave differing interpretations to the nexus requirement, and some "approved activities that were questionable as to the appropriateness of accepting compensation." GAO Report, at 9.

The Court observes that because a nexus limitation is retained for a series of speeches, it cannot be that difficult to enforce. Ante, at 19. The exception which the honoraria ban makes for a "series of appearances, speeches, or articles," far from undermining the statute's basic purpose, demonstrates that Congress was sensitive to the need for inhibiting as little speech consistent with its responsibility of ensuring that its employees perform their duties impartially and that there is no appearance of impropriety. Reply Brief for United States 12-13. One is far less likely to undertake a "series" of speeches or articles without being paid than he is to make a single speech or write a single article without being paid. Congress reasonably could have concluded that the number of cases where an employee wished to deliver a "series" of speeches would be much smaller than the number of requests to give individual speeches or write individual articles.

Unlike our prototypical application of Pickering which normally involves a response to the content of employee speech, the honoraria ban prohibits no speech and is unrelated to the message or the viewpoint expressed by the government employee. [n.6] Cf. Waters, supra, at ___ (slip op., at 1-2) (plurality opinion) (analyzing termination of an employee based upon statements critical of the employer); Rankin v. McPherson, 483 U.S. 378, 381-382 (1987) (analyzing termination of an employee based upon a comment about an attempted assassination of President Reagan); Pickering, 391 U. S., at 564 (analyzing termination of an employee based upon a letter critical of the school board). Furthermore, the honoraria ban exempts from its prohibition travel and other expenses related to employee speech. See 5 U. S. C. App. §505(3) (1988 ed., Supp. V); 5 CFR § 2636.203 (1994). Because there is only a limited burden on respondents' First Amendment rights, Congress reasonably could have determined that its paramount interests in preventing impropriety and the appearance of impropriety in its work force justified the honoraria ban. See Civil Service Comm'n v. Letter Carriers, 413 U.S. 548 (1973); Public Workers v. Mitchell, 330 U.S. 75 (1947).

There is a special irony to the Court's decision. In order to combat corruption and to regain the public's trust, the Court essentially requires Congress to resurrect a bureaucracy that it previously felt compelled to replace and to equip it with resources sufficient to conduct case by case determinations regarding the actual and apparent propriety of honoraria by all Executive Branch employees below grade GS-16. I believe that a proper application of the Pickering test to this content neutral restriction on the receipt of compensation compels the conclusion that the honoraria ban is consistent with the First Amendment. See Letter Carriers, supra.

One would expect, at the conclusion of its discussion in Parts I-IV, for the Court to hold the statute inapplicable on First Amendment grounds to persons such as the postal worker who lectures on the Quaker religion, and others of similar ilk. But the Court in Part V, in what may fairly be described as an O. Henry ending, holds the statute inapplicable to the entire class before the Court: all Executive Branch employees below grade GS-16 who would receive honoraria but for the statute. Under the Court's "as applied" remedy, §501(b) would not apply regardless of whether there was a nexus between the compensation and the individual's employment. Even if I agreed that application of the honoraria ban to expressive activity unrelated to an employee's Government employment violated the First Amendment, I could not agree with the Court's remedy. [n.7]

In United States v. Grace, 461 U.S. 171 (1983), we analyzed the constitutionality of 40 U.S.C. § 13k (1982 ed.), as applied to the public sidewalks surrounding the Supreme Court. Section 13k prohibited, "among other things, the `display [of] any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement' in the United States Supreme Court building and on its grounds." 461 U. S., at 172-173 (quoting §13k). We concluded that there was insufficient justification for §13k's prohibition against carrying signs, banners, or devices on the public sidewalks surrounding the building. Id., at 183. As a remedy, we held that §13k was "unconstitutional as applied to those sidewalks." Ibid.; see also Edenfield v. Fane, 507 U. S. ___, ___ (1993) (slip op., at 1) (striking down a ban on solicitation by CPAs as applied to the "business context").

Although the Court limits its analysis to only those applications of the honoraria ban where there is no nexus between the honoraria and Government employment, the Court prohibits application of the honoraria ban to all Executive Branch employees below grade GS-16 even where there is a nexus between the honoraria and the employees' Government employment. Ante, at 24-26. [n.8] Even respondents acknowledge that the central aim of their litigation could "be achieved by a remedy similar to the one urged by the government--by holding the ban invalid as applied to respondents' writing and speaking activities, which have no nexus to their federal employment." Brief for Respondents 45-46.

Consistent with our approach in Grace, supra, if I were to conclude that §501(b) violated the First Amendment, I would affirm the Court of Appeals only insofar as its judgment affirmed the injunction against the enforcement of §501(b) as applied to Executive Branch employees below grade GS-16 who seek honoraria that are unrelated to their Government employment.


1 In Ex parte Curtis, 106 U.S. 371 (1882), we upheld a statute that prohibited certain Government employees from giving or receiving money for political purposes to or from other Government employees. Ibid. The evident purpose of the statute was to "promote efficiency and integrity in the discharge of official duties, and to maintain proper discipline in the public service." Id., at 373. "The decisive principle was the power of Congress, within reasonable limits, to regulate, so far as it might deem necessary, the political conduct of its employees." Public Workers v. Mitchell, 330 U.S. 75, 96 (1947) (analyzing Ex parte Curtis, supra).

2 Prior to the Hatch Act, Congress had prohibited Civil Service employees from " `us[ing] [their] official authority or influence to coerce the political action of any person or body.' " Mitchell, supra, at 79-80, n. 4 (quoting Civil Service Act, ch. 27, §2, 22 Stat. 404).

3 Ironically, the Court engages in unsupported factfinding to justify its conclusion. Thus, its First Amendment analysis is replete with observations such as "[w]ith 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," ante, at 10; and "[b]ecause 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." Ante, at 15.

4 "The Commission also considered whether it was appropriate to impose a flat ban on outside earned income by all federal employees, or in the alternative, by the highest paid federal employees. In view of the diverse circumstances of federal employees, we felt that an across the board ban on outside earned income was unnecessary and too harsh." App. 258.

5 The Court discusses a report of the General Accounting Office (GAO) to refute the argument that there is some evidence of misconduct related to honoraria in the rank and file of federal employees below grade GS-16. Ante, at 17-18, n. 18 (citing General Accounting Office, Report to the Chairman, Subcommittee on Federal Services, Post-Office and Civil Service of the Senate Committee on Governmental Affairs, Employee Conduct Standards: Some Outside Activities Present Conflict of Interest Issues (Feb. 1992) (hereinafter GAO Report)). The GAO audited 11 agencies' controls over outside activities by employees. Id., at 2. The GAO Report reflects that under the prior regime, some agencies exhibited "overly permissive approval policies," ibid., and "five agencies approved some outside activities, such as speaking and consulting, that appeared to violate the standard of conduct prohibiting the use of public office for private gain," ibid. Nine of the eleven agencies reviewed had "approved outside activities in situations that involved potential violations of standard of conduct regulations or conflict of interest statutes." Id., at 58. Nevertheless, the Court maintains that there is no evidence of even the appearance of impropriety by employees below grade GS-16. Cf. ante, at 17-18, n. 18.

6 The Court's fanciful example of an employer terminating an employee because of the disruptive effect of the employee's expression even where the employer agrees with the expression, ante, at 12, n. 11, does not detract from the fact that viewpoint and content neutrality are important factors in evaluating the reasonableness of the public employer's action. See, e.g., Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 564 (1973) ("The restrictions so far imposed on federal employees are not aimed at particular parties, groups, or points of view . . . . Nor do they seek to control political opinions or beliefs, or to interfere with or influence anyone's vote at the polls").

7 Lost in the shuffle of the Court's remedy is Peter Crane, a GS-16 lawyer from the Nuclear Regulatory Commission, and a respondent before the Court. Ante, at 5-6. Although the rationale behind the Court's holding does not necessarily apply to Crane, see ante, at 24, n. 23, the Court's holding apparently does.

8 Because the Court has rewritten the honoraria ban so that it no longer applies to Executive Branch employees below grade GS-16, I certainly could not condemn the Court for its refusal to rewrite the statute. Cf. ante, at 25, n. 26. I simply challenge the Court's failure to tailor its remedy to match its selective analysis.