Amdt1.2.8.2.1 Freedom of Speech and the Role of the Government: Government as Employer

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

An area in which significant First Amendment issues are often raised is the establishment of loyalty-security standards for government employees. Such programs generally take one of two forms or may combine the two. First, government may establish a system investigating employees or prospective employees under standards relating to presumed loyalty. Second, government may require its employees or prospective employees to subscribe to a loyalty oath disclaiming belief in or advocacy of, or membership in an organization that stands for or advocates, unlawful or disloyal action. The Federal Government’s security investigation program has been tested numerous times and First Amendment issues raised, but the Supreme Court has never squarely confronted the substantive constitutional issues, and it has not dealt with the loyalty oath features of the federal program.1 The Court has, however, had a long running encounter with state loyalty oath programs.2

First encountered3 was a loyalty oath for candidates for public office rather than one for public employees. Accepting the state court construction that the law required each candidate to make oath that he is not a person who is engaged ‘in one way or another in the attempt to overthrow the government by force or violence,’ and that he is not knowingly a member of an organization engaged in such an attempt, the Court unanimously sustained the provision in a one-paragraph per curiam opinion.4 Less than two months later, the Court upheld a requirement that employees take an oath that they had not within a prescribed period advised, advocated, or taught the overthrow of government by unlawful means, nor been a member of an organization with similar objectives; every employee was also required to swear that he was not and had not been a member of the Communist Party.5 For the Court, Justice Clark perceived no problem with the inquiry into Communist Party membership but cautioned that no issue had been raised whether an employee who was or had been a member could be discharged merely for that reason.6 With regard to the oath, the Court did not discuss First Amendment considerations but stressed that it believed the appropriate authorities would not construe the oath adversely against persons who were innocent of an organization’s purpose during their affiliation, or persons who had severed their associations upon knowledge of an organization’s purposes, or persons who had been members of an organization at a time when it was not unlawfully engaged.7 Otherwise, the oath requirement was valid as a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty and as being reasonably designed to protect the integrity and competency of the service.8

In the following Term, the Court sustained a state statute disqualifying for government employment persons who advocated the overthrow of government by force or violence or persons who were members of organizations that so advocated; the statute had been supplemented by a provision applicable to teachers calling for the drawing up of a list of organizations that advocated violent overthrow and making membership in any listed organization prima facie evidence of disqualification.9 Justice Minton observed that everyone had a right to assemble, speak, think, and believe as he pleased, but had no right to work for the state in its public school system except upon compliance with the state’s reasonable terms. 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.10 A state could deny employment based on a person’s advocacy of overthrow of the government by force or violence or based on unexplained membership in an organization so advocating with knowledge of the advocacy.11 With regard to the required list, the Justice observed that the state courts had interpreted the law to provide that a person could rebut the presumption attached to his mere membership.12

Invalidated the same year was an oath requirement, addressed to membership in the Communist Party and other proscribed organizations, which the state courts had interpreted to disqualify from employment solely on the basis of organizational membership. Stressing that membership might be innocent, that one might be unaware of an organization’s aims, or that he might have severed a relationship upon learning of its aims, the Court struck the law down; one must be or have been a member with knowledge of illegal aims.13 But subsequent cases firmly reiterated the power of governmental agencies to inquire into the associational relationships of their employees for purposes of determining fitness and upheld dismissals for refusal to answer relevant questions.14 In Shelton v. Tucker,15 however, a five-to-four majority held that, although a state could inquire into the fitness and competence of its teachers, a requirement that every teacher annually list every organization to which he belonged or had belonged in the previous five years was invalid because it was too broad, bore no rational relationship to the state’s interests, and had a considerable potential for abuse.

The Court relied on vagueness when loyalty oaths aimed at subversives next came before it. In Cramp v. Board of Public Instruction,16 it unanimously held an oath too vague that required one to swear, inter alia, that I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party. Similarly, in Baggett v. Bullitt,17 the Court struck down 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.18

More precisely drawn oaths survived vagueness attacks but fell before First Amendment objections in the next three cases. Elfbrandt v. Russell19 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.20 Next, in Keyishian v. Board of Regents,21 the oath provisions sustained in Adler22 were declared unconstitutional. A number of provisions were voided as vague,23 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, 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.24 Similarly, in Whitehill v. Elkins,25 an oath was voided because the Court thought it might include within its proscription innocent membership in an organization that advocated illegal overthrow of government.

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. Higginbotham26 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. Richardson27 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.

Government as Employer: Free Expression Generally

Abolition of the spoils system in federal employment brought with it restrictions on 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.28 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.29 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.30 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.

In United Public Workers v. Mitchell,31 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 ruled against a mechanical employee of the Mint who had done so. The Court’s opinion, 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,32 but it based 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 was a due process standard of reasonableness.33 Thus, changes in the standards of judging incidental restrictions on expression suggested the possibility of a reconsideration of Mitchell.34 In Civil Service Commission v. National Association of Letter Carriers, however, a divided Court, reaffirming Mitchell, sustained the Act’s limitations upon political activity against a range of First Amendment challenges.35 The Court 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;36 therefore, a statute that barred in plain language a long list of activities would clearly be valid.37 The issue in Letter Carriers, however, was whether the language that Congress had enacted, forbidding employees to take an active part in political management or in political campaigns,38 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. With 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 in a section stating that the forbidden activities were the same activities that 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. . . .39 This language had been included, it was contended, to deprive the Commission of power to alter thousands of rulings it had made that were not available to employees and that were in any event mutually inconsistent and too broad.

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. The Commission had done that. It had regularly summarized in understandable terms the rules that it applied, and it was authorized as well to issue advisory opinions to employees uncertain 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.40 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.41 Subsequently, in Bush v. Lucas42 the Court held that the civil service laws and regulations constitute a sufficiently elaborate, comprehensive scheme to afford federal employees an 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.

The Hatch Act cases were distinguished in United States v. National Treasury Employees Union (NTEU),43 in which the Court struck down an honoraria ban as applied to lower-level employees of the Federal Government. The honoraria ban suppressed employees’ right to free expression while the Hatch Act sought to protect that right, and also there was no evidence of improprieties in acceptance of honoraria by members of the plaintiff class of federal employees.44 The Court emphasized further difficulties with the crudely crafted honoraria ban: it was limited to expressive activities and had no application to other sources of outside income, it applied when neither the subjects of speeches and articles nor the persons or groups paying for them bore any connection to the employee’s job responsibilities, and it exempted a series of speeches or articles without also exempting individual articles and speeches. These anomalies led the Court to conclude that the speculative benefits of the ban were insufficient to justify the burdens it imposed on expressive activities.45

In recent decades, the Court has eliminated the right-privilege distinction with respect to public employees' free speech rights. 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.46 The Supreme Court embraced this application in the early 1950s, first affirming a lower court decision by an evenly divided vote,47 and soon after applying the distinction itself. Upholding a prohibition on employment as teachers of persons who advocated the desirability of overthrowing the government, the Court declared that [i]t is clear that such persons have the right under our law to assemble, speak, think and believe as they will. . . . It is equally clear that they have no right to work for the state in the school system on their own terms. They may work for the school system under reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not.48

The same year, however, the Court expressly rejected 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.49 The premise here – that there is a constitutional claim against dismissal or rejection – has faded in subsequent cases; the rationale now is that, although 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 a 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.50

However, the fact that government does not have carte blanche in dealing with the constitutional rights of its employees does not mean that it has no power at all. [I]t cannot be gainsaid, the Court said in Pickering v. Board of Education, 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.51 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.52 The Court laid down no general standard, but undertook a suggestive analysis. 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.53 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 administration 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.54

Combining a balancing test of governmental interest and employee rights with a purportedly limiting statutory construction, the Court, in Arnett v. Kennedy,55 sustained the constitutionality of a federal law that authorized the 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,56 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 inasmuch as 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.57 Nor 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.58

Pickering was distinguished in Connick v. Myers,59 involving what the Court characterized in the main as an employee grievance 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. The Court found this firing 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.60 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.61 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.62 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.63

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.64 In Rankin v. McPherson65 the Court held protected an employee’s comment, made to a co-worker upon hearing of an unsuccessful attempt to assassinate the President, and in a context critical of the 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.66

In City of San Diego v. Roe,67 the Court held that a police department could fire a police officer who sold a video on the adults-only section of eBay that showed him stripping off a police uniform and masturbating. The Court found that the officer’s expression does not qualify as a matter of public concern . . . and Pickering balancing does not come into play.68 The Court also noted that the officer’s speech, unlike federal employees’ speech in United States v. National Treasury Employees Union (NTEU),69 was linked to his official status as a police officer, and designed to exploit his employer’s image, and therefore was detrimental to the mission and functions of his employer.70 The Court, therefore, had little difficulty in concluding that the City was not barred from terminating Roe under either line of cases [i.e., Pickering or NTEU].71 This leaves uncertain whether, had the officer’s expression not been linked to his official status, the Court would have overruled his firing under NTEU or would have upheld it under Pickering on the ground that his expression was not a matter of public concern.

In Garcetti v. Ceballos, the Court cut back on First Amendment protection for government employees by holding that there is no protection – Pickering balancing is not to be applied – when public employees make statements pursuant to their official duties, even if those statements are about matters of public concern.72 In this case, a deputy district attorney had presented his supervisor with a memo expressing his concern that an affidavit that the office had used to obtain a search warrant contained serious misrepresentations. The deputy district attorney claimed that he was subjected to retaliatory employment actions, and he sued. The Supreme Court held that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.73 The fact that the employee’s speech occurred inside his office, and the fact that the speech concerned the subject matter of his employment, were not sufficient to foreclose First Amendment protection.74 Rather, the controlling factor was that his expressions were made pursuant to his duties.75 Therefore, another employee in the office, with different duties, might have had a First Amendment right to utter the speech in question, and the deputy district attorney himself might have had a First Amendment right to communicate the information that he had in a letter to the editor of a newspaper. In these two instances, a court would apply Pickering balancing.

In distinguishing between wholly unprotected employee speech and quasi-protected citizen speech, sworn testimony outside of the scope of a public employee's ordinary job duties appears to be citizen speech. In Lane v. Franks,76 the director of a state government program for underprivileged youth was terminated from his job following his testimony regarding the alleged fraudulent activities of a state legislator that occurred during the legislator's employment in the government program. The employee challenged the termination on First Amendment grounds. The Court held generally that testimony by a subpoenaed public employee made outside the scope of his ordinary job duties is to be treated as speech by a citizen, subject to the Pickering-Connick balancing test.77 The Court noted that [s]worn testimony in judicial proceedings is a quintessential example of speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation to the court and society at large, to tell the truth.78 In so holding, the Court confirmed that Garcetti's holding is limited to speech made in accordance with an employee's official job duties and does not extend to speech that merely concerns information learned during that employment.

The Court in Lane ultimately found that the plaintiff's speech deserved protection under the Pickering-Connick balancing test because the speech was both a matter of public concern (the speech was testimony about misuse of public funds) and the testimony did not raise concerns for the government employer.79 After Lane, some question remains about the scope of protection for public employees, such as police officers or official representatives of an agency of government, who testify pursuant to their official job duties, and whether such speech falls within the scope of Garcetti.

The protections applicable to government employees have been extended to independent government contractors, the Court announcing that the Pickering balancing test, adjusted to weigh the government’s interests as contractor rather than as employer, determines the extent of their protection.80

In sum, although a public employer may not muzzle its employees or penalize them for their expressions and associations to the same extent that a private employer can,81 the public employer nonetheless has broad leeway in restricting employee speech. If the employee speech does not relate to a matter of public concern, then Connick applies and the employer is largely free of constitutional restraint.82 If the speech does relate to a matter of public concern, then, unless the speech was made by an employee pursuant to his duties, Pickering’s balancing test is applied, with the governmental interests in efficiency, workplace harmony, and the satisfactory performance of the employee’s duties83 balanced against the employee’s First Amendment rights.84 Although the general approach is easy to describe, it has proven difficult to apply.85 The First Amendment, however, does not stand alone in protecting the speech of public employees; statutory protections for whistleblowers add to the mix.86

Footnotes

  1.  Jump to essay-1The federal program is primarily grounded in two Executive Orders by President Truman and President Eisenhower, E.O. 9835, 12 Fed. Reg. 1935 (1947), and E.O. 10450, 18 Fed. Reg. 2489 (1953), and a significant amendatory Order issued by President Nixon, E.O. 11605, 36 Fed. Reg. 12831 (1971). Statutory bases include 5 U.S.C. §§ 7311, 7531-32. Cases involving the program were decided either on lack of authority for the action being reviewed, e.g., Cole v. Young, 351 U.S. 536 (1956); and Peters v. Hobby, 349 U.S. 331 (1955), or on procedural due process grounds, Greene v. McElroy, 360 U.S. 474 (1959); Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886 (1961). But cf. United States v. Robel, 389 U.S. 258 (1967); Schneider v. Smith, 390 U.S. 17 (1968). A series of three-judge district court decisions, however, invalidated federal loyalty oaths and inquiries. Soltar v. Postmaster General, 277 F. Supp. 579 (N.D. Calif. 1967); Haskett v. Washington, 294 F. Supp. 912 (D.D.C. 1968); Stewart v. Washington, 301 F. Supp. 610 (D.D.C. 1969); National Ass'n of Letter Carriers v. Blount, 305 F. Supp. 546 (D.D.C. 1969) (no-strike oath).
  2.  Jump to essay-2So-called negative oaths or test oaths are dealt with in this section; for the positive oaths, see Imposition of Consequences for Holding Certain Beliefs, supra.
  3.  Jump to essay-3Test oaths had first reached the Court in the period following the Civil War, at which time they were voided as ex post facto laws and bills of attainder. Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867); Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867).
  4.  Jump to essay-4Gerende v. Board of Supervisors of Elections, 341 U.S. 56 (1951) (emphasis original). In Indiana Communist Party v. Whitcomb, 414 U.S. 441 (1974), a requirement that parties and candidates seeking ballot space subscribe to a similar oath was voided because the oath’s language did not comport with the advocacy standards of Brandenburg v. Ohio, 395 U.S. 444 (1969). Four Justices concurred more narrowly. 414 U.S. at 452 n.3. See also Whitcomb v. Communist Party of Indiana, 410 U.S. 976 (1973).
  5.  Jump to essay-5Garner v. Board of Pub. Works, 341 U.S. 716 (1951). Justice Frankfurter dissented in part on First Amendment grounds, id. at 724, Justice Burton dissented in part, id. at 729, and Justices Black and Douglas dissented completely, on bill of attainder grounds, id. at 731.
  6.  Jump to essay-6341 U.S. at 720. Justices Frankfurter and Burton agreed with this ruling. Id. at 725–26, 729–30.
  7.  Jump to essay-7341 U.S. at 723–24.
  8.  Jump to essay-8341 U.S. at 720–21. Justice Frankfurter objected that the oath placed upon the takers the burden of assuring themselves that every organization to which they belonged or had been affiliated with for a substantial period of time had not engaged in forbidden advocacy.
  9.  Jump to essay-9Adler v. Board of Educ., 342 U.S. 485 (1952). Justice Frankfurter dissented because he thought no party had standing. Id. at 497. Justices Black and Douglas dissented on First Amendment grounds. Id. at 508.
  10.  Jump to essay-10342 U.S. at 492.
  11.  Jump to essay-11342 U.S. at 492.
  12.  Jump to essay-12342 U.S. at 494–96.
  13.  Jump to essay-13Wieman v. Updegraff, 344 U.S. 183 (1952).
  14.  Jump to essay-14Beilan v. Board of Education, 357 U.S. 399 (1958); Lerner v. Casey, 357 U.S. 468 (1958); Nelson v. County of Los Angeles, 362 U.S. 1 (1960). Compare Slochower v. Board of Higher Education, 350 U.S. 551 (1956). For the self-incrimination aspects of these cases, see Fifth Amendment, Self-Incrimination: Development and Scope, infra.
  15.  Jump to essay-15364 U.S. 479 (1960). It is not disputed that to compel a teacher to disclose his every associational tie is to impair that teacher’s right of free association, a right closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society. Id. at 485–86. Justices Frankfurter, Clark, Harlan, and Whittaker dissented. Id. at 490, 496.
  16.  Jump to essay-16368 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).
  17.  Jump to essay-17377 U.S. 360 (1964). Justices Clark and Harlan dissented. Id. at 380
  18.  Jump to essay-18377 U.S. at 369–70.
  19.  Jump to essay-19384 U.S. 11 (1966). Justices White, Clark, Harlan, and Stewart dissented. Id. at 20.
  20.  Jump to essay-20384 U.S. 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.
  21.  Jump to essay-21385 U.S. 589 (1967). Justices Clark, Harlan, Stewart, and White dissented. Id. at 620.
  22.  Jump to essay-22Adler v. Board of Education, 342 U.S. 485 (1952).
  23.  Jump to essay-23Keyishian v. Board of Regents, 385 U.S. 589, 597–604 (1967).
  24.  Jump to essay-24385 U.S. at 608. The statement here makes specific intent or active membership alternatives in addition to knowledge, whereas Elfbrandt v. Russell, 384 U.S. 11, 19 (1966), requires both in addition to knowledge.
  25.  Jump to essay-25389 U.S. 54 (1967). Justices Harlan, Stewart, and White dissented. Id. at 62.
  26.  Jump to essay-26403 U.S. 207 (1971).
  27.  Jump to essay-27405 U.S. 676, 683–84 (1972).
  28.  Jump to essay-2819 Stat. 143, § 6, 18 U.S.C. §§ 602-03, sustained in Ex parte Curtis, 106 U.S. 371 (1882); 22 Stat. 403, as amended, 5 U.S.C. § 7323.
  29.  Jump to essay-2953 Stat. 1147 § 9(a), (1939), as amended, 5 U.S.C. § 7324(a)(2). By 54 Stat. 767 (1940), as amended, 5 U.S.C. §§ 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).
  30.  Jump to essay-30The Commission on Political Activity of Government Personnel, Findings and Recommendations 11, 19-24 (Washington: 1968).
  31.  Jump to essay-31330 U.S. 75, 94–104 (1947). The decision was 4-to-3, with Justice Frankfurter joining the Court on the merits only after arguing that the Court lacked jurisdiction.
  32.  Jump to essay-32330 U.S. at 94–95.
  33.  Jump to essay-33330 U.S. at 101–02.
  34.  Jump to essay-34The 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).
  35.  Jump to essay-35413 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 clearly could constitutionally proscribe.
  36.  Jump to essay-36The interests the Court recognized 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.
  37.  Jump to essay-37413 U.S. at 556.
  38.  Jump to essay-38413 U.S. at 554, 570 n.17.
  39.  Jump to essay-39413 U.S. at 570 n.17.
  40.  Jump to essay-40413 U.S. at 578–79.
  41.  Jump to essay-41413 U.S. at 580–81.
  42.  Jump to essay-42462 U.S. 367, 385 (1983).
  43.  Jump to essay-43513 U.S. 454 (1995).
  44.  Jump to essay-44See 513 U.S. at 471. The plaintiff class consisted of all Executive Branch employees below grade GS-16. Also covered by the ban were senior executives, Members of Congress, and other federal officers, but the possibility of improprieties by these groups did not justify application of the ban to the vast rank and file of federal employees below grade GS-16. Id. at 472.
  45.  Jump to essay-45513 U.S. at 477.
  46.  Jump to essay-46McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 2d 517 (1892).
  47.  Jump to essay-47Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950), aff’d by an evenly 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. Id. at 59. 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).
  48.  Jump to essay-48Adler 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).
  49.  Jump to essay-49Wieman v. Updegraff, 344 U.S. 183, 190–91, 192 (1952). Some earlier cases had used 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).
  50.  Jump to essay-50Perry v. Sindermann, 408 U.S. 593, 597 (1972) (citation omitted). 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, 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). See Amendment 14, The Property Interest, infra.
  51.  Jump to essay-51391 U.S. 563, 568 (1968).
  52.  Jump to essay-52391 U.S. at 568.
  53.  Jump to essay-53391 U.S. 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.
  54.  Jump to essay-54391 U.S. at 573. 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 different contexts. That is, with respect to public speech, content may be determinative in weighing impairment of the government’s interests, whereas, with private speech, as [w]hen a government employee personally confronts his immediate superior, . . . the manner, time, and place in which it is delivered may also be relevant. Id. at 415 n.4. As discussed below, however, in Garcetti v. Ceballos, 547 U.S. 410 (2006), the Court held that there is no First Amendment protection at all for government employees when they make statements pursuant to their official duties.
  55.  Jump to essay-55416 U.S. 134 (1974). The quoted language is from 5 U.S.C. § 7501(a).
  56.  Jump to essay-56Civil Service Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548, 578–79 (1973).
  57.  Jump to essay-57Arnett v. Kennedy, 416 U.S. 134, 158–64 (1974).
  58.  Jump to essay-58416 U.S. 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.
  59.  Jump to essay-59461 U.S. 138 (1983).
  60.  Jump to essay-60461 U.S. at 146. Connick was a 5-4 decision. Justice Brennan wrote the dissent, 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.
  61.  Jump to essay-61461 U.S. at 147–48. Justice Brennan objected to this introduction of context, admittedly relevant in balancing interests, into the threshold issue of public concern.
  62.  Jump to essay-62461 U.S. at 151–52.
  63.  Jump to essay-63461 U.S. 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.
  64.  Jump to essay-64This conclusion was implicit in Givhan, 439 U.S. 410 (1979), 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.
  65.  Jump to essay-65483 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.
  66.  Jump to essay-66Where . . . 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.
  67.  Jump to essay-67543 U.S. 77 (2004) (per curiam).
  68.  Jump to essay-68543 U.S. at 84.
  69.  Jump to essay-69513 U.S. 454 (1995) (discussed under Government as Employer: Political and Other Outside Activities, supra).
  70.  Jump to essay-70543 U.S. at 84.
  71.  Jump to essay-71543 U.S. at 80.
  72.  Jump to essay-72547 U.S. 410, 421 (2006) .
  73.  Jump to essay-73547 U.S. at 421. However, [s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. Id. at 419. Such necessity, however, may be based on a common-sense conclusion rather than on empirical data. Tennessee Secondary School Athletic Ass'n v. Brentwood Academy, 551 U.S. 291, 300 (2007) (citing Garcetti).
  74.  Jump to essay-74The Court cited Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979), for these points. In Givhan, the Court had upheld the First Amendment right of a public school teacher to complain to the school principal about employment policies and practices at [the] school which [she] conceived to be racially discriminatory in purpose or effect. Id. at 413. The difference between Givhan and Ceballos was apparently that Givhan’s complaints were not made pursuant to her job duties, whereas Ceballos’ were. Therefore, Givhan spoke as a citizen whereas Ceballos spoke as a government employee. See Ceballos, 547 U.S. at 420–21.
  75.  Jump to essay-75547 U.S. at 421.
  76.  Jump to essay-76573 U.S. ___, No. 13-483, slip op. (2014).
  77.  Jump to essay-77Id. at 9.
  78.  Jump to essay-78Id.
  79.  Jump to essay-79Id. at 12–13. The Court, however, held that because no relevant precedent in the lower court or in the Supreme Court clearly established that the government employer could not fire an employee because of testimony the employee gave, the defendant was entitled to qualified immunity. Id. at 13–17.
  80.  Jump to essay-80Board of County Comm’rs v. Umbehr, 518 U.S. 668, 673 (1996). See also O'Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 715 (1996) (government may not retaliate[ ] against a contractor, or a regular provider of services, for the exercise of rights of political association or the expression of political allegiance).
  81.  Jump to essay-81See, e.g., Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S. 507 (1980) (political patronage systems impermissibly infringe protected belief and associational rights of employees); Madison School Dist. v. WERC, 429 U.S. 167 (1976) (school teacher may not be prevented from speaking at a public meeting in opposition to position advanced by union with exclusive representation rights). The public employer may, as may private employers, permit collective bargaining and confer on representatives of its employees the right of exclusive representation, Abood v. Detroit Bd. of Educ., 431 U.S. 209, 223–32 (1977), but the fact that its employees may speak does not compel government to listen to them. See Smith v. Arkansas State Highway Employees, 441 U.S. 463 (1979) (employees have right to associate to present their positions to their employer but employer not constitutionally required to engage in collective bargaining). See also Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271 (1984) (public employees not members of union have no First Amendment right to meet separately with public employers compelled by state law to meet and confer with exclusive bargaining representative). Government may also inquire into the fitness of its employees and potential employees, but it must do so in a manner that does not needlessly endanger the expression and associational rights of those persons. See, e.g., Shelton v. Tucker, 364 U.S. 479 (1969).
  82.  Jump to essay-82In Connick, the Court noted that it did not suggest that Myers’ speech, even if not touching upon a matter of public concern, is totally beyond the protection of the First Amendment. Rather, it was beyond First Amendment protection absent the most unusual of circumstances. 461 U.S. at 147. In Ceballos, however, the Court, citing Connick at 147, wrote that, if an employee did not speak as a citizen on a matter of public concern, then the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. 547 U.S. at 418.
  83.  Jump to essay-83In some contexts, the governmental interest is more far-reaching. See Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (interest in protecting secrecy of foreign intelligence sources).
  84.  Jump to essay-84The Court stated in Janus v. American Federation of State, County, and Municipal Employees, Council 31, 585 U.S. ____, No. 16-1466, slip op. at 2324 (2018), that this analysis requires modification when a court considers general rules that affect broad categories of employees. In such a case, the government must shoulder a correspondingly 'heav[ier]' burden and is entitled to considerably less deference in its assessment that a predicted harm justifies a particular impingement on First Amendment rights. Id. at 24 (quoting United States v. National Treasury Employees Union, 513 U.S. 454, 466 (1995)) (alteration in original).
  85.  Jump to essay-85For analysis of efforts of lower courts to apply Pickering and Connick, see Massaro, Significant Silences: Freedom of Speech in the Public Sector Workplace, 61 S. Cal. L. Rev. 1 (1987); and Allred, From Connick to Confusion: The Struggle to Define Speech on Matters of Public Concern, 64 Ind. L.J. 43 (1988). In Waters v. Churchill, 511 U.S. 661 (1994), a plurality of a divided Court concluded that a public employer does not violate the First Amendment if the employer (1) had reasonably believed that the employee’s conversation involved personal matters and (2) dismissed the employee because of that reasonable belief, even if the belief was mistaken. Id. at 679–80 (plurality opinion) (O’Connor, J., joined by Rehnquist, C.J., Souter & Ginsburg, JJ.). More than two decades later, a six-Justice majority approvingly cited to the plurality opinion from Waters, concluding that the employer’s motive is dispositive in determining whether a public employee’s First Amendment rights had been violated as a result of the employer’s conduct. See Heffernan v. City of Paterson, 578 U.S. ___, No. 14-1280, slip op. at 5 (2016). In so doing, the Court held that the converse of the situation in Waters—a public employer’s firing of an employee based on the mistaken belief that the employee had engaged in activity protected by the First Amendment—was actionable as a violation of the Constitution. See id. at 6 (After all, in the law, what is sauce for the goose is normally sauce for the gander.). Put another way, when an employer demotes an employee to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment, even if . . . the employer makes a factual mistake about the employee’s behavior. Id. The Court concluded that the employer’s motivation is central with respect to public employee speech issues because of (1) the text of the First Amendment—which focus[es] upon the activity of the Government; and (2) the underlying purposes of the public employee speech doctrine, which is to prevent the chilling effect that results when an employee is discharged for having engaged in protected activity. Id. at 6–7.
  86.  Jump to essay-86The principal federal law is the Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16, 5 U.S.C. § 1201 note.