# 7 ,,,1992 CONSTITUTION OF THE UNITED STATES]
[Page 1020-1187]
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FIRST AMENDMENT
RELIGION AND EXPRESSION
FREEDOM OF EXPRESSION--SPEECH AND PRESS
Vagueness was then employed by the Court when loyalty oaths
aimed at ``subversives'' next came before it. Cramp v. Board of Public
Instruction\49\ unanimously held too vague an oath which required one to
swear, inter alia, that ``I have not and will not lend my aid, support,
advice, counsel or influence to the Communist
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Party.'' Similarly, in Baggett v. Bullitt,\50\ two oaths, one requiring
teachers to swear that they ``will by precept and example promote
respect for the flag and the institutions of the United States of
America and the State of Washington, reverence for law and order and
undivided allegiance to the government,'' and the other requiring all
state employees to swear, inter alia, that they would not ``aid in the
commission of any act intended to overthrow, destroy, or alter or assist
in the overthrow, destruction, or alteration'' of government. Although
couched in vagueness terms, the Court's opinion stressed that the
vagueness was compounded by its effect on First Amendment rights and
seemed to emphasize that the State could not deny employment to one
simply because he unintentionally lent indirect aid to the cause of
violent overthrow by engaging in lawful activities that he knew might
add to the power of persons supporting illegal overthrow.\51
\49\368 U.S. 278 (1961). For further proceedings on this oath,
see Connell v. Higginbotham, 305 F. Supp. 445 (M.D. Fla. 1970). aff'd in
part and rev'd in part, 403 U.S. 207 (1971).
\50\377 U.S. 360 (1964). Justices Clark and Harlan dissented.
Id. at 380
\51\Id. at 369-70.
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More precisely drawn oaths survived vagueness attacks but fell
before First Amendment objections in the next three cases. Elfbrandt v.
Russell\52\ involved an oath that as supplemented would have been
violated by one who ``knowingly and willfully becomes or remains a
member of the communist party . . . or any other organization having for
its purposes the overthrow by force or violence of the government'' with
``knowledge of said unlawful purpose of said organization.'' The law's
blanketing in of ``knowing but guiltless'' membership was invalid, wrote
Justice Douglas for the Court, because one could be a knowing member but
not subscribe to the illegal goals of the organization; moreover, it
appeared that one must also have participated in the unlawful activities
of the organization before public employment could be denied.\53\ Next,
in Keyishian v. Board of Regents,\54\ the oath provisions sustained in
Adler\55\ were declared unconstitutional. A number of provisions were
voided as vague,\56\ but the Court held invalid a new provision making
Communist Party membership prima facie evidence of disqualification for
employment because the opportunity to rebut the presumption was too
limited. It could be rebutted only by denying membership, denying
knowledge of advocacy of illegal overthrow,
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or denying that the organization advocates illegal overthrow. But
``legislation which sanctions membership unaccompanied by specific
intent to further the unlawful goals of the organization or which is not
active membership violates constitutional limitations.''\57\ Similarly,
in Whitehill v. Elkins,\58\ the oath, revised, upheld in Gerende,\59\
was voided because the Court thought it might include within its
proscription innocent membership in an organization which advocated
illegal overthrow of government.
\52\384 U.S. 11 (1966). Justices White, Clark, Harlan, and
Stewart dissented. Id. at 20.
\53\Id. at 16, 17, 19. ``Those who join an organization but do
not share its unlawful purposes and who do not participate in its
unlawful activities pose no threat, either as citizens or public
employees.'' Id. at 17.
\54\385 U.S. 589 (1967). Justices Clark, Harlan, Stewart, and
White dissented. Id. at 620.
\55\Adler v. Board of Education, 342 U.S. 485 (1952).
\56\Keyishian v. Board of Regents, 385 U.S. 589, 597-604 (1967).
\57\Id. at 608. Note that the statement here makes specific
intent or active membership alternatives in addition to knowledge while
Elfbrandt v. Russell, 384 U.S. 11, 19 (1966), requires both in addition
to knowledge.
\58\389 U.S. 54 (1967). Justices Harlan, Stewart, and White
dissented. Id. at 62.
\59\Gerende v. Board of Supervisors of Elections, 341 U.S. 56
(1951).
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More recent cases do not illuminate whether membership changes
in the Court presage a change in view with regard to the loyalty-oath
question. In Connell v. Higginbotham\60\ an oath provision reading
``that I do not believe in the overthrow of the Government of the United
States or of the State of Florida by force or violence'' was invalidated
because the statute provided for summary dismissal of an employee
refusing to take the oath, with no opportunity to explain that refusal.
Cole v. Richardson\61\ upheld a clause in an oath ``that I will oppose
the overthrow of the government of the United States of America or of
this Commonwealth by force, violence, or by any illegal or
unconstitutional method'' upon the construction that this clause was
mere ``repetition, whether for emphasis or cadence,'' of the first part
of the oath, which was a valid ``uphold and defend'' positive oath.
\60\403 U.S. 207 (1971).
\61\405 U.S. 676, 683-84 (1972).
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Legislative Investigations and the First Amendment.--The power
of inquiry by congressional and state legislative committees in order to
develop information as a basis for legislation\62\ is subject to some
uncertain limitation when the power as exercised results in deterrence
or penalization of protected beliefs, associations and conduct. While
the Court initially indicated that it would scrutinize closely such
inquiries in order to curb First Amendment infringement,\63\ later cases
balanced the interests of the legislative bodies in inquiring about both
protected and unprotected associations and conduct against what were
perceived to be limited restraints upon the speech and association
rights of witnesses, and
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upheld wide-ranging committee investigations.\64\ More recently, the
Court has placed the balance somewhat differently and required that the
investigating agency show ``a subordinating interest which is
compelling'' to justify the restraint on First Amendment rights which
the Court found would result from the inquiry.\65\ The issues in this
field, thus, must be considered to be unsettled pending further judicial
consideration.
\62\Supra, pp.93-105.
\63\See United States v. Rumely, 345 U.S. 41 (1953); Watkins v.
United States, 354 U.S. 178, 197-98 (1957); Sweezy v. New Hampshire, 354
U.S. 234, 249-51 (1957). Concurring in the last case, Justices
Frankfurter and Harlan would have ruled that the inquiry there was
precluded by the First Amendment. Id. at 255.
\64\Barenblatt v. United States, 360 U.S. 109 (1959); Uphaus v.
Wyman, 360 U.S. 72 (1959); Wilkinson v. United States, 365 U.S. 399
(1961); Braden v. United States, 365 U.S. 431 (1961). Chief Justice
Warren and Justices Black, Douglas, and Brennan dissented in each case.
\65\Gibson v. Florida Legislative Investigation Committee, 372
U.S. 539 (1963). Justices Harlan, Clark, Stewart, and White dissented.
Id. at 576, 583. See also DeGregory v. Attorney General of New
Hampshire, 383 U.S. 825 (1966).
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Interference With War Effort.--Unlike the dissent to United
States participation in World War I, which provoked several
prosecutions,\66\ the dissent to United States action in Vietnam was
subjected to little legal attack. Possibly the most celebrated
governmental action, the prosecution of Dr. Spock and four others for
conspiring to counsel, aid, and abet persons to evade or to refuse
obligations under the Selective Service System, failed to reach the
Supreme Court.\67\ Aside from a comparatively minor case,\68\ the
Court's sole encounter with a Vietnam War protest allegedly involving
protected ``symbolic conduct'' was United States v. O'Brien.\69\ That
case affirmed a conviction and upheld a congressional prohibition
against destruction of draft registration certificates; O'Brien had
publicly burned his card. ``We cannot accept the view that an apparently
limitless variety of conduct can be labeled `speech' whenever the person
engaging in the conduct intends thereby to express an idea. However,
even on the assumption that the alleged communicative element in
O'Brien's conduct is sufficient to bring into play the First Amendment,
it does not necessarily follow that the destruction of a registration
certificate is constitutionally protected activity. This Court has held
that when `speech' and `nonspeech' elements are combined in the same
course of conduct, a sufficiently important governmental interest in
regulating the nonspeech element can justify incidental limitations on
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First Amendment freedoms.''\70\ Finding that the Government's interest
in having registrants retain their cards at all times was an important
one and that the prohibition of destruction of the cards worked no
restriction of First Amendment freedoms broader than that needed to
serve the interest, the Court upheld the statute. More recently, the
Court upheld a ``passive enforcement'' policy singling out for
prosecution for failure to register for the draft those young men who
notified authorities of an intention not to register for the draft and
those reported by others.\71
\66\Supra, pp.1036-38.
\67\United States v. Spock, 416 F.2d 165 (1st Cir. 1969).
\68\In Schacht v. United States, 398 U.S. 58 (1970), the Court
reversed a conviction under 18 U.S.C. Sec. 702 for wearing a military
uniform without authority. The defendant had worn the uniform in a skit
in an on-the-street anti-war demonstration, and 10 U.S.C. Sec. 772(f)
authorized the wearing of a military uniform in a ``theatrical
production'' so long as the performance did not ``tend to discredit''
the military. This last clause the Court held unconstitutional as an
invalid limitation of freedom of speech.
\69\391 U.S. 367 (1968).
\70\Id. at 376-77. For recent cases with suggestive language,
see Snepp v. United States, 444 U.S. 507 (1980); Haig v. Agee, 453 U.S.
280 (1981).
\71\Wayte v. United States, 470 U.S. 598 (1985). The incidental
restriction on First Amendment rights to speak out against the draft was
no greater than necessary to further the government's interests in
``prosecutorial efficiency,'' obtaining sufficient proof prior to
prosecution, and promoting general deterrence (or not appearing to
condone open defiance of the law). See also United States v. Albertini,
472 U.S. 675 (1985) (order banning a civilian from entering military
base valid as applied to attendance at base open house by individual
previously convicted of destroying military property).
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Suppression of Communist Propaganda in the Mails.--A 1962
statute authorizing the Post Office Department to retain all mail from
abroad which was determined to be ``communist political propaganda'' and
to forward it to an addressee only upon his request was held
unconstitutional in Lamont v. Postmaster General.\72\ The Court held
that to require anyone to request receipt of mail determined to be
undesirable by the Government was certain to deter and inhibit the
exercise of First Amendment rights to receive information.\73\
Distinguishing Lamont, the Court in 1987 upheld statutory classification
as ``political propaganda'' of communications or expressions by or on
behalf of foreign governments, foreign ``principals,'' or their agents,
and reasonably adapted or intended to influence United States foreign
policy.\74\ ``The physical detention of materials, not their mere
designation as `communist political propaganda,' was the offending
element of the statutory scheme [in Lamont].''\75
\72\381 U.S. 301 (1965). The statute, Pub. L. 87-793, Sec. 305,
76 Stat. 840, was the first federal law ever struck down by the Court as
an abridgment of the First Amendment speech and press clauses.
\73\Id. at 307. Justices Brennan, Harlan, and Goldberg
concurred, spelling out in some detail the rationale of the protected
right to receive information as the basis for the decision.
\74\Meese v. Keene, 481 U.S. 465 (1987).
\75\Id. at 480.
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Exclusion of Certain Aliens as a First Amendment Problem.--While
a nonresident alien might be able to present no claim, based on the
First Amendment or on any other constitutional provision, to overcome a
governmental decision to exclude him from the country, it was arguable
that United States citizens who could
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assert a First Amendment interest in hearing the alien and receiving
information from him, such as the right recognized in Lamont, could be
able to contest such exclusion.\76\ But the Court declined to reach the
First Amendment issue and to place it in balance when it found that a
governmental refusal to waive a statutory exclusion\77\ was on facially
legitimate and neutral grounds; the Court's emphasis, however, upon the
``plenary'' power of Congress over admission or exclusion of aliens
seemed to indicate where such a balance might be drawn.\78
\76\The right to receive information has been prominent in the
rationale of several cases, e.g., Martin v. City of Struthers, 319 U.S.
141 (1943); Thomas v. Collins, 323 U.S. 516 (1945); Stanley v. Georgia,
394 U.S. 557 (1969).
\77\By Sec. Sec. 212(a)(28)(D) and (G) of the Immigration and
Nationality Act of 1952, 8 U.S.C. Sec. Sec. 1182(a)(28)(D) and (G),
aliens who advocate or write and publish ``the economic, international,
and governmental doctrines of world communism'' are made ineligible to
receive visas and are thus excluded from the United States. Upon the
recommendation of the Secretary of State, however, the Attorney General
is authorized to waive these provisions and to admit such an alien
temporarily into the country. INA Sec. 212(d)(3)(A), 8 U.S.C.
Sec. 1182(d)(3)(A).
\78\Kleindienst v. Mandel, 408 U.S. 753 (1972).
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FIRST AMENDMENT
RELIGION AND EXPRESSION
FREEDOM OF EXPRESSION--SPEECH AND PRESS
Particular Governmental Regulations Which Restrict Expression
Government adopts and enforces many measures which are designed
to further a valid interest but which may have restrictive effects upon
freedom of expression. As an employer, government is interested in
attaining and maintaining full production from its employees in a
harmonious environment. As enforcer of the democratic method of carrying
out selection of public officials, it is interested in outlawing
``corrupt practices'' and promoting a fair and smoothly-functioning
electoral process. As regulator of economic affairs, its interests are
extensive. As educator, it desires to impart knowledge and training to
the young with as little distraction as possible. All of these interests
may be achieved with some restriction upon expression, but if the
regulation goes too far expression may be abridged and the regulation
will fail.\79
\79\Highly relevant in this and subsequent sections dealing with
governmental incidental restraints upon expression is the distinction
the Court has drawn between content-based and content-neutral
regulations, a distinction designed to ferret out those regulations
which indeed serve other valid governmental interests from those which
in fact are imposed because of the content of the expression reached.
Compare Police Department v. Mosley, 408 U.S. 92 (1972); Erznoznik v.
City of Jacksonville, 422 U.S. 205 (1975); and Schacht v. United States,
398 U.S. 58 (1970), with Greer v. Spock, 424 U.S. 828 (1976); Civil
Service Commission v. National Association of Letter Carriers, 413 U.S.
548 (1973); and United States v. O'Brien, 391 U.S. 367 (1968). Content-
based regulations are subjected to strict scrutiny, while content-
neutral regulations are not.
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Government as Employer: Political Activities.--Abolition of the
``spoils system'' in federal employment brought with it con
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sequent restrictions upon political activities by federal employees. In
1876, federal employees were prohibited from requesting from, giving to,
or receiving from any other federal employee money for political
purposes, and the Civil Service Act of 1883 more broadly forbade civil
service employees to use their official authority or influence to coerce
political action of any person or to interfere with elections.\80\ By
the Hatch Act, federal employees, and many state employees as well, are
forbidden to ``take any active part in political management or in
political campaigns.''\81\ As applied through the regulations and
rulings of the Office of Personnel Management, formerly the Civil
Service Commission, the Act prevents employees from running for public
office, distributing campaign literature, playing an active role at
political meetings, circulating nomination petitions, attending a
political convention except as a spectator, publishing a letter
soliciting votes for a candidate, and all similar activity.\82\ The
question is whether government, which may not prohibit citizens in
general from engaging in these activities, may nonetheless so control
the off-duty activities of its own employees.
\80\Ch. 287, 19 Stat. 169, Sec. 6, 18 U.S.C. Sec. Sec. 602-03,
sustained in Ex parte Curtis, 106 U.S. 371 (1882); Ch. 27, 22 Stat. 403,
as amended, 5 U.S.C. Sec. 7323.
\81\Ch. 410, 53 Stat. 1148 Sec. 9(a), (1939), as amended, 5
U.S.C. Sec. 7324(a)(2). By Ch. 640, 54 Stat. 767 (1940), as amended, 5
U.S.C. Sec. Sec. 1501-08, the restrictions on political activity were
extended to state and local governmental employees working in programs
financed in whole or in part with federal funds. This provision was
sustained against federalism challenges in Oklahoma v. Civil Service
Comm'n, 330 U.S. 127 (1947). All the States have adopted laws patterned
on the Hatch Act. See Broadrick v. Oklahoma, 413 U.S. 601, 604 (1973).
\82\The Commission on Political Activity of Government
Personnel, Findings and Recommendations 11, 19-24 (Washington: 1968).
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In United Public Workers v. Mitchell,\83\ the Court answered in
the affirmative. While the Court refused to consider the claims of
persons who had not yet engaged in forbidden political activities, it
did rule against a mechanical employee of the Mint who had done so. The
opinion of the Court, by Justice Reed, recognized that the restrictions
of political activities imposed by the Act did in some measure impair
First Amendment and other constitutional rights,\84\ but it placed its
decision upon the established principle that no right is absolute. The
standard by which the Court judged the validity of the permissible
impairment of First Amendment rights, however, was a due process
standard of reasonableness.\85\ Thus, changes in the standards of
judging incidental restrictions on expression suggested the possibility
of a reconsideration of Mitch
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ell.\86\ But a divided Court, reaffirming Mitchell, sustained the Act's
limitations upon political activity against a range of First Amendment
challenges.\87\ It emphasized that the interest of the Government in
forbidding partisan political activities by its employees was so
substantial that it overrode the rights of those employees to engage in
political activities and association;\88\ therefore, a statute which
barred in plain language a long list of activities would be clearly
valid.\89\ The issue in Letter Carriers, however, was whether the
language Congress did enact, forbidding employees to take ``an active
part in political management or in political campaigns,'' was
unconstitutional on its face, either because the statute was too
imprecise to allow government employees to determine what was forbidden
and what was permitted, or because the statute swept in under its
coverage conduct that Congress could not forbid as well as conduct
subject to prohibition or regulation. In respect to vagueness,
plaintiffs contended and the lower court had held that the quoted
proscription was inadequate to provide sufficient guidance and that the
only further elucidation Congress had provided was to enact that the
forbidden activities were the same activities which the Commission had
as of 1940, and reaching back to 1883, ``determined are at the time of
the passage of this act prohibited on the part of employees . . . by the
provisions of the civil-service rules. . . .'' This language had been
included, it was contended, to deprive the Commission of power to alter
thousands of rulings made by it which were not available to employees
and which were in any event mutually inconsistent and too broad.
\83\330 U.S. 75, 94-104 (1947). The decision was 4-to-3, with
Justice Frankfurter joining the Court on the merits only after arguing
the Court lacked jurisdiction.
\84\Id. at 94-95.
\85\Id. at 101, 102.
\86\The Act was held unconstitutional by a divided three-judge
district court. National Ass'n of Letter Carriers v. Civil Service
Comm'n, 346 F. Supp. 578 (D.D.C. 1972).
\87\Civil Service Comm'n v. National Ass'n of Letter Carriers,
413 U.S. 548 (1973). In Broadrick v. Oklahoma, 413 U.S. 601 (1973), the
Court refused to consider overbreadth attacks on a state statute of much
greater coverage because the plaintiffs had engaged in conduct that the
statute could clearly constitutionally proscribe.
\88\The interests recognized by the Court as served by the
proscription on partisan activities were (1) the interest in the
efficient and fair operation of governmental activities and the
appearance of such operation, (2) the interest in fair elections, and
(3) the interest in protecting employees from improper political
influences. 413 U.S. at 557-67.
\89\Id. at 556.
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The Court held, on the contrary, that Congress had intended to
confine the Commission to the boundaries of its rulings as of 1940 but
had further intended the Commission by a process of case-by-case
adjudication to flesh out the prohibition and to give content to it.
That the Commission had done. It had regularly summarized in
understandable terms the rules which it applied, and it was authorized
as well to issue advisory opinions to employees un
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certain of the propriety of contemplated conduct. ``[T]here are
limitations in the English language with respect to being both specific
and manageably brief,'' said the Court, but it thought the prohibitions
as elaborated in Commission regulations and rulings were ``set out in
terms that the ordinary person exercising ordinary common sense can
sufficiently understand and comply with, without sacrifice to the public
interests.''\90\ There were conflicts, the Court conceded, between some
of the things forbidden and some of the protected expressive activities,
but these were at most marginal. Thus, some conduct arguably protected
did under some circumstances so partake of partisan activities as to be
properly proscribable. But the Court would not invalidate the entire
statute for this degree of overbreadth.\91\ More recently, in Bush v.
Lucas\92\ the Court held that the civil service laws and regulations are
sufficiently ``elaborate [and] comprehensive'' so as to afford federal
employees adequate remedy for deprivation of First Amendment rights as a
result of disciplinary actions by supervisors, and that therefore there
is no need to create an additional judicial remedy for the
constitutional violation.
\90\Id. at 578-79.
\91\Id. at 580-81.
\92\462 U.S. 367 (1983).
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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
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teachers of persons who advocated the desirability of overthrowing the
government, the Court declared that ``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
\93\McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29
N.E. 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).
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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
\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).
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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
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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
\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.
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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
\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.
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Pickering was distinguished in Connick v. Myers,\106\ involving
what the Court characterized in the main as an employee grievance
[[Page 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
\106\461 U.S. 138 (1983).
\107\461 U.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.
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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. McPherson\112\ 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
[[Page 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
\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.'' 461 U.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.''
483 U.S. at 390-91.
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