Archive for the ‘First Amendment’ Category
This is the fifth in a series of posts, intended for a general audience, discussing the Constitution. Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution and addressed the Equal Protection Clause.
Today’s post deals with hate speech and that part of the First Amendment that declares: “Congress shall make no law … 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.”.
I want to emphasize three important take-away points at the outset. One is that the First Amendment protects us from the government; it does not apply to relations between private persons. Second, the First Amendment, like all individual rights in the Constitution, is not absolute. And last, freedom of speech has costs.
What is freedom of speech anyway? There is the joke told years ago by the Russian comedian Yacov Smirnoff. He was confronted by an American bragging about freedom of speech. Smirnoff retorted: “Big deal! We also have freedom of speech in Russia. What we don’t have is freedom after speech.”
One of the most controversial free speech issues involves hate speech, including but not limited to the anti-Semitic kind. Hate speech and anti-Semitism are major concerns in Europe and the Middle East and remain a nagging concern in the US as well. Hate speech can be defined as speech directed at a historically oppressed religious or racial minority with the intent to insult and demean. Hate speech undermines social attitudes and beliefs, it isolates its targets and it tends to silence them because they are often stunned and unable to respond. Hate speech also traumatizes (think of the effect it had on survivors and other Jews when the Nazis threatened to march in Skokie). We all know some of the hateful slurs that are too often directed against Jews, blacks, Latinos and Italians in this country.
What does the First Amendment, through interpretations by the Supreme Court, have to say about hate speech? The short answer is that the First Amendment prohibits government from regulating such speech altogether. This is a very different approach from that of countries in Western Europe that often prohibit such speech, including denials of the Holocaust.
But why should that be? After all, despite the children’s saying about sticks and stones, we know that words can in fact hurt and lead to terrible acts. Words have power. Words have costs.
One answer is that the First Amendment creates a marketplace of ideas in which everyone can participate. Everyone can try to sell his or her ideas to the marketplace and the buyers in the marketplace eventually decide which ideas have value and which do not, which ideas are truthful and which are not. We are all sellers and buyers in this marketplace.
What is the government’s role in this marketplace of ideas? Basically, the government must stay neutral; it must keep its hands off of the marketplace. The Enlightenment assumption—the assumption of the Framers of the Constitution—that underlies the marketplace of ideas is that people are ultimately rational, they may be persuaded by reason, even though emotions and passions play a major rule in political decision-making.
What kinds of ideas are out there in the marketplace of ideas? Political ideas, artistic ideas, scientific ideas, social ideas of all kinds, whether smart, crazy, far-out, brilliant, dangerous.
However, despite what I’ve just said, there are some communications that are not allowed in the marketplace of ideas. Obscene speech, for one, carefully defined by the Supreme Court, is excluded from the marketplace of ideas. Another kind of communication, child pornography, is also not allowed because its production involves child abuse. The reasons for these exceptions include history and the belief that these kinds of communications have little or no redeeming social value.
So now you’re thinking the following: if there are some exceptions under the First Amendment and its marketplace of ideas, why not also include hate speech as an exception? After all, hate speech surely has little or no redeeming social value. It insults, it demeans, it traumatizes, it silences and there is a consensus in American society that it is valueless at best and dangerous at worst. Why should government not be allowed to prohibit it?
The Supreme Court’s answer to this particular question is that even hate speech contains political ideas, however horrible these ideas may be. When you regulate such speech, you are also regulating ideas. Think of George Orwell’s Animal Farm and forbidden words. The Supreme Court has also made clear that just because speech offends people, this is never a justification under the First Amendment for punishing it. Furthermore, we are justifiably suspicious of government when it attempts to regulate speech and ideas. After all, government may have its own political agenda in regulating hate speech—which groups would be protected against hate speech and which not?
Finally, and perhaps most important, think about how the marketplace of ideas functions: even if hateful ideas are communicated, the theory (hope?) is that counter-speech will emerge to rebut it and to fight it. In other words, more speech rather than less is the remedy.
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I hope you find it of interest.
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Town of Greece v. Galloway: Pending Supreme Court Decision on Legislative Prayer and the Establishment Clause
The Town of Greece Case
Suppose a town, over a period of a decade or so, regularly invited Christian clergymen to lead the opening prayers in town board meetings. Suppose also that these clergymen, more often than not, invoked Jesus and/or the Holy Ghost in their prayers and that, typically, everyone was asked to stand, bow his/her head or join in the prayer, which some did. At the same time, the town occasionally, albeit infrequently, invited a few others, including non-Christian clergy, to lead the opening prayer. Did this pattern violate the Establishment Clause?
“We emphasize what we do not hold. We do not hold that the town may not open its public meetings with a prayer or invocation. Such legislative prayers, as Marsh holds and as we have repeatedly noted, do not violate the Establishment Clause. Nor do we hold that any prayers offered in this context must be blandly “nonsectarian.” A requirement that town officials censor the invocations offered — beyond the limited requirement, recognized in Marsh, that prayer-givers be advised that they may not proselytize for, or disparage, particular religions — is not only not required by the Constitution, but risks establishing a “civic religion” of its own. Occasional prayers recognizing the divinities or beliefs of a particular creed, in a context that makes clear that the town is not endorsing or affiliating itself with that creed or, more broadly, with religion or non-religion, are not offensive to the Constitution. Nor are we adopting a test that permits prayers in theory but makes it impossible for a town in practice to avoid Establishment Clause problems. To the contrary, it seems to us that a practice such as the one to which the town here apparently aspired — one that is inclusive of multiple beliefs and makes clear, in public word and gesture, that the prayers offered are presented by a randomly chosen group of volunteers, who do not express an official town religion, and do not purport to speak on behalf of all the town’s residents or to compel their assent to a particular belief — is fully compatible with the First Amendment.
“What we do hold is that a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause. Where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town takes no steps to avoid the identification, but rather conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them, a reasonable objective observer would perceive such an affiliation.”
The Supreme Court granted certiorari, Town of Greece v. Galloway, No. 12-696, and will give us its answer to the Establishment Clause question this Term. Oral argument takes place on November 6, 2013.
The Second Circuit used Justice O’Connor‘s endorsement test in holding that the Establishment Clause was violated. See Lynch v. Donnelly, 465 U.S. 668 (1984), involving religious displays. There were also hints of the oft-derided (especially by Justice Scalia) Lemon test with its insistence on a secular effect. See Lemon v. Kurtzman, 403 U.S. 602 (1971), dealing with aid to religious schools.
What was not really mentioned by the Second Circuit is Justice Kennedy‘s coercion test, set out in Lee v. Weisman, 505 U.S. 577 (1992), which involved a middle-school authorized prayer at graduation . If such a test were applied here, the result probably would be that these opening prayers did not violate the Establishment Clause because adults were involved and the situation was not really coercive. So an important question is: which of these tests will the Court use?
The Court could scuttle the endorsement test in the course of reversing the Second Circuit and apply the less restrictive, more deferential coercion test. Or it could retain the endorsement test and rule narrowly that the circumstances did not amount to an endorsement of religion.
In the background, and perhaps the foreground, is Marsh v. Chambers, 463 U.S. 783 (1983), the only case in which the validity of legislative prayer has been considered by the Supreme Court. Here, the Court ruled that the Nebraska legislature’s practice of opening its sessions with a prayer delivered by a state-employed clergyman did not violate the Establishment Clause. The Court used an historical approach to interpreting the Establishment Clause, emphasizing that the Framers themselves, by their practice in Congress, did not view legislative prayers led by government-employed clergy as violations of the Establishment Clause. In addition, and importantly, the Court noted that the Judeo-Christian content of the prayers in Marsh did not establish religion because the prayers did not proselytize, advance any religion or disparage any religion.
I have long thought that Marsh was a questionable decision: the Framers’ practice should not have been determinative of the validity under the Establishment Clause of legislative prayers led by government employed clergy.
But assuming that Marsh was sound and should be followed, is Town of Greece nevertheless distinguishable from Marsh on the ground that the prayers here advanced Christianity?
My prediction is that the Court will reverse the Second Circuit. The more important issue is how the opinion will be written and by whom.
(For general background on the Establishment Clause, see my post, The Religion Clauses: ‘Tis the Season).
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Background on Garcetti and Public Employee Free Speech
Some time ago I blogged critically about the Supreme Court‘s game-changing public employee free speech decision in Garcetti v. Ceballos, 547 U.S. 410 (2006). In Garcetti, the Court held, 5-4, that a public employee whose speech is part of his or her official duties is not protected by the First Amendment from employer discipline for that speech.
Subsequently, I argued in a law review article, Academic Freedom and the Post-Garcetti Blues, that Garcetti should not apply to a college or university professor’s teaching and scholarship.
The Ninth Circuit’s Decision in Demers v. Austin
This month, the Ninth Circuit, in Demers v. Austin (PDF), No. 11-35558 (9th Cir. Sept. 4, 2013), agreed with the proposition that Garcetti should not apply to a university professor’s teaching and scholarship.
In Demers, a tenured associate professor, suing under section 1983 for damages and injunctive relief, claimed that the defendant university administrators retaliated against him in violation of the First Amendment because he distributed a short pamphlet and drafts from an in-progress book. The pamphlet, which dealt critically with a reorganization plan at the university. was distributed both internally and to the print and broadcast media as well as published on a website. In addition, the plaintiff attached drafts of his in-progress book, which included material critical of the University, on his application for sabbatical. The defendants argued that the pamphlet and the drafts were written and circulated as part of the plaintiff’s official duties and were therefore not protected by the First Amendment under Garcetti.
Rejecting that argument, the Ninth Circuit, opinion by Judge W. Fletcher, declared broadly:
“We hold that Garcetti does not apply to teaching and writing on academic matters by teachers employed by the state. Rather, such teaching and writing by publicly employed teachers is governed by Pickering v. Board of Education, 391 U.S. 563 (1968).” The Ninth Circuit emphasized the importance of academic freedom for teaching and writing, particularly at the university level.
Here, according to the Ninth Circuit, the pamphlet addressed a matter of public concern within the meaning of Pickering and was protected by the First Amendment. The district court therefore erred in granting summary judgment to the defendants on this issue. On the other hand, there was insufficient evidence to show that the in-progress book drafts triggered any retaliation.
Still, the defendants won on the plaintiff’s section 1983 damages claim because the defendants were entitled to qualified immunity given the uncertain state of the law after Garcetti. However, on remand, the district court should address the propriety of the plaintiff’s section 1983 injunctive relief claim.
1. The pamphlets were distributed to the public as well as internally, thereby triggering Pickering directly. Thus, there might have been no need for the Ninth Circuit to address the applicability of Garcetti: the plaintiff, at least in part, wrote as a citizen, and not as an employee.
2. The drafts of the in-progress book were not a motivating factor in the alleged retaliation against the plaintiff. Thus, strictly speaking, the Ninth Circuit’s language about Garcetti‘s inapplicability to writing (in the sense of scholarship) was dictum. The pamphlets were not scholarship.
3. Nevertheless, this decision overall is sound in its emphasis on the First Amendment protection of a college or university professor’s teaching and scholarship.
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I blogged on March 29, 2012, about the Supreme Court‘s grant of certiorari in Reichle v. Howards, a case arising out of the Tenth Circuit. The Supreme Court had granted certiorari to deal with the important question of whether there should be a probable cause defense to a Bivens First Amendment claim that federal law enforcement officers arrested the plaintiff because of their disagreement with his speech.
That post should be consulted for relevant background, including the important decision in Hartman v. Moore, 547 U.S. 250 (2006). Note also that the answer to the question will apply equally to section 1983 claims.
On June 4, 2012, the Court, in an opinion by Justice Thomas, avoided the merits and ruled instead that the defendants were protected by qualified immunity. See my post of June 13, 2012, analyzing the decision.
I came across the following post-Reichle decisions from the Fourth, Seventh and Ninth Circuits as I was preparing the 2013 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.)(West)(available on Westlaw at CIVLIBLIT).
Note that, of these circuits, only the Ninth Circuit has taken the position that probable cause is not a defense.
In Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013), the plaintiff alleged that he was retaliated against by Transportation Security Agency (TSA) agents in violation of the First Amendment when they seized and arrested him at an airport for displaying the text of the Fourth Amendment on his chest. According to the Fourth Circuit, the defendants were not entitled to qualified immunity because it was clearly settled in September 2010 that the First Amendment protected peaceful non-disruptive speech in an airport and that such speech could not be punished because government disagreed with it. A case on all fours was not required. In addition, the Supreme Court’s decision in Reichle v. Howards was distinguishable because here the plaintiff specifically alleged that his arrest was not supported by probable cause. Judge Wilkinson dissented, 706 F.3d 379, 394, arguing that this airport security case was an especially appropriate one justifying the applicability of qualified immunity.
The Seventh Circuit, following Reichle, held that the defendant police officers who allegedly arrested the plaintiff because of what he said, even though there was probable cause for the arrest, were protected by qualified immunity. Thayer v. Chiczewski, 705 F.3d 237 (7th Cir. 2012). The Seventh Circuit also noted that the First Amendment retaliation/probable cause issue was unresolved in its circuit.
In contrast to the Seventh Circuit in Thayer, the Ninth Circuit stated that it was adhering to its earlier position in Skoog v. County of Clackamas, 469 F.3d 1221 (9th Cir. 2006), that an arrestee has a “First Amendment right to be free from police action motivated by retaliatory animus, even if probable cause existed for that action.” Ford v. City of Yakima, 706 F.3d 1188 (9th Cir. 2013). The plaintiff alleged that the defendant officers violated his First Amendment rights when they booked and jailed him in retaliation for his protected speech—criticizing them for an allegedly racially motivated traffic stop—even though there was probable cause for the initial arrest. The Ninth Circuit also went on to rule that the defendants violated clearly settled law in July 2007 and were thus not entitled to qualified immunity.
Judge Callahan dissented, arguing, first, that the Ninth Circuit’s precedents did not necessarily apply after an arrestee has been detained, and second, that the defendants did not violate clearly settled law “forbidding an officer from considering the comments of a legally detained individual when determining whether to book the individual.” 706 F.3d, at 1197.
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New Supreme Court Decision on Free Speech and Government Funding: The Agency for International Development Case
The Supreme Court handed down an important First Amendment decision on June 20, 2013, that has attracted relatively little attention thus far. The decision is Agency for International Development v. Alliance for Open Society (PDF), 133 S. Ct. — (2013), No. 12-10 (Justice Scalia, joined by Justice Thomas, dissented; Justice Kagan recused herself).
In order to understand it, I’d like to provide the First Amendment background.
First Amendment Background
It is black letter First Amendment law that, with few exceptions, government cannot directly regulate the speech of its citizens because of disagreement with the viewpoint expressed. Ideally, government should be neutral when it comes to the content of speech. See my post of January 19, 2010, where I discuss the three dominant rationales of the First Amendment.
It is also black letter First Amendment law that government cannot compel its citizens to express political or other views. West Virginia Bd. of Education v. Barnette, 319 U. S. 624 (1943); Wooley v. Maynard, 430 U. S. 705 (1977).
Government Funding and Unconstitutional Conditions
What happens, however, where government does not do either of these directly but instead conditions the receipt of government funds in ways that affect the content of the recipient’s speech? To what extent should government be permitted to buy a citizen’s First Amendment (and other) rights by exercising the power of the purse? This implicates what is known as the doctrine of unconstitutional conditions.
Let me set the stage for Agency for International Development with several examples from earlier Supreme Court cases.
1. Suppose the federal government provides funds that may only be used by recipient organizations to promote childbirth, not abortion.
According to the Supreme Court in Rust v. Sullivan, 500 U. S. 173 (1991), this was a constitutional condition–it did not violate the First Amendment–because the government was entitled to insure that its funds were used by recipients for their intended purpose, the promotion of childbirth. In addition, nothing prevented the recipient from obtaining funding from other private sources that could be used for abortion counseling, so long as the two activities, childbirth and abortion counseling, were kept separate.
2. Suppose the federal government not only provides funds for a particular purpose, say, paying for legal services for indigents, but also imposes a condition on the recipient that it not take a particular position in the course of providing those legal services, even if taking a particular position in the course of providing legal services is separately funded by private sources.
Notice how this condition goes beyond the use of the funds themselves, thereby making it more suspect under the First Amendment.
According to the Supreme Court in Legal Services Corp. v. Velasquez, 531 U.S. 533 (2001), this condition on funding violated the First Amendment. It was an unconstitutional condition.
The Agency for International Development Case
Finally, consider the Agency for International Development case. Here the United States, as part of a program to eliminate HIV/AIDS worldwide, funded various non-governmental organizations (NGOs) operating around the world to participate in this program. However, two conditions on receiving funding were imposed. The first condition posed no First Amendment problem under Rust: no funds could be used to promote or advocate the legalization or practice of prostitution and sex trafficking.
However, the second condition did present a problem: no funds could be used by any recipient organization that did not have a policy expressly opposing prostitution and sex trafficking.
Various recipient organizations challenged the second condition under the First Amendment because, if they complied with it, they would, first, alienate certain host governments and, second, they would have to censor privately funded discussions in publications, conferences and other forums.
In an opinion by Chief Justice Roberts, the Supreme Court held this second condition unconstitutional. It went well beyond the funding condition upheld in Rust. And it even went beyond the funding condition struck down in Legal Services Corporation. It did not just prohibit recipients from expressing a position with which the federal government disagreed, but it required them affirmatively to take the government’s position as their own. This requirement conflicted with the First Amendment’s prohibition against compelled speech.
As Chief Justice Roberts put the matter, “It requires them to pledge allegiance to the Government’s policy of eradicating prostitution.”
In context, then, this was not a difficult First Amendment case, but it was an important one.
Reichle v. Howards, 132 S. Ct. — (2012), decided on June 4, 2012
I blogged on March 29, 2012, about the Supreme Court‘s grant of certiorari in Reichle v. Howards, a case arising out of the Tenth Circuit. As noted there, the Supreme Court had granted certiorari to deal with the important question of whether there should be a probable cause defense to a Bivens First Amendment claim that federal law enforcement officers arrested the plaintiff because of their disagreement with his speech.
(See that post for relevant background, including the important decision in Hartman v. Moore, 547 U.S. 250 (2006).)
The Tenth Circuit Decision
The defendants were two Secret Service Agents who were on protective detail for Vice President Cheney when they arrested the plaintiff after his encounter with the Vice President: probable cause was provided by the fact that the plaintiff lied to the defendants about touching the Vice President, a violation of federal law. The plaintiff alleged, though, that he was actually arrested in violation of the First Amendment because he was overheard saying he wanted to ask the Vice President personally “how many kids he had killed.”
The Tenth Circuit held on the merits that there was no such probable cause defense to the First Amendment retaliatory arrest claim, although it noted the split in the circuits on this issue. The Tenth Circuit also found that the defendants were not entitled to qualified immunity on this claim: they violated clearly settled First Amendment circuit law when they arrested the plaintiff because of his speech, even though they had independent Fourth Amendment probable cause grounds to arrest him. Howards v. McCaughlin, 634 F.3d 1131 (10th Cir. 2011), with Judge Kelly concurring in part and dissenting in part.
The Supreme Court Decision
The Supreme Court reversed in an opinion by Justice Thomas. The Court avoided deciding whether probable cause was a defense to a First Amendment retaliatory arrest claim. Instead, it ruled that the defendants were protected by qualified immunity because they did not violate clearly settled First Amendment law: “This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly settled at the time of Howards’ arrest.” Read the rest of this entry »
The First Amendment Retaliatory Arrest Question
Suppose a police officer arrests a person with objective probable cause to arrest but with the subjective motivation to arrest him because of something he said, in violation of the First Amendment? Does the Fourth Amendment probable cause determination have any bearing on the section 1983 First Amendment claim for damages?
One would think that the answer should be “no” because these are separate constitutional violations. After all, if the police officer had instead subjectively arrested the plaintiff because of his race, wouldn’t there still be an equal protection violation and therefore a section 1983 equal protection damages claim?
The Supreme Court’s decision in Hartman v. Moore, a Retaliatory Prosecution Case
However, the answer to the First Amendment retaliatory arrest question may not be so simple after Hartman v. Moore, 547 U.S. 250 (2006), discussed in my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION:THE LAW OF SECTION 1983 (4th ed. 2011), at section 3:13. In this section 1983 case, the Court held that a plaintiff, who sued law enforcement officers contending that he was prosecuted because of his protected speech, had to allege and prove the absence of probable cause as part of his claim.
The Court reached this conclusion because, unlike in ordinary retaliation cases that involved a relatively clear causal connection between the impermissible motivation and resulting injury to the plaintiff, the causal link was far more attenuated in retaliatory prosecution cases: the plaintiff had to show that the impermissible motivation of the law enforcement officer caused the prosecutor to prosecute, a decision that was entitled to a “presumption of regularity.” Thus, according to the Court, it made sense in retaliatory prosecution cases to impose on plaintiffs this additional burden of pleading and proving the absence of probable cause. (Recall that prosecutors are absolutely immune from damages liability for their decisions to prosecute).
Certiorari Granted in Reichle v. Howards
Does Hartman‘s rationale apply equally to retaliatory arrest cases? Or is Hartman very different because of difficulty that retaliatory prosecution plaintiffs typically have in showing the causal link between the law enforcement officer’s impermissible motivation and the prosecutor’s decision to prosecute?
This is the issue now before the Court in Reichle v. Howards, No. 11-262, a case arising out of the Tenth Circuit. On Dec.5, 2011, the Supreme Court granted certiorari in Reichle to deal with the important question of whether there should be a Fourth Amendment probable cause defense to a Bivens First Amendment claim that federal law enforcement officers arrested the plaintiff because of their disagreement with his speech. Read the rest of this entry »
A Rare Unanimous Religion Clauses Decision by the Supreme Court
It is rare for the Justices of the Supreme Court to hand down a unanimous decision in a Religion Clauses case. But it happened on January 11, 2012, in Hosanna-Tabor Evangelical Church and School v. EEOC, 132 S. Ct. — (2012). This case involved the so-called “ministerial exception” to otherwise generally applicable federal law.
Perich, formerly a “called teacher” for the Hosanna-Tabor Evangelical Church and School (a member of the Lutheran Church-Missouri Synod), had filed a claim with the EEOC contending that she was terminated in violation of the Americans with Disabilities Act. Thereafter, the EEOC filed suit against Hosanna-Tabor (Perich intervened in this EEOC lawsuit) alleging that Perich had been fired in retaliation for previously threatening to file an ADA lawsuit. According to the Church, this threat contravened Church law.
Hosanna-Tabor countered that it was protected by a ministerial exception under the First Amendment’s Religion Clauses because the EEOC’s and Perich’s claims involved the employment relationship between a church and a minister.
Reversing the Sixth Circuit, which had determined that Perich did not qualify as a minister, the Supreme Court in an unanimous decision written by Chief Justice Roberts, found that she did indeed qualify as a minister and that Hosanna-Tabor was protected by the ministerial exception from suit for retaliation. Read the rest of this entry »
Borough of Duryea v. Guarnieri: § 1983, Public Employees and the Petition Clause
The Supreme Court in 2011 handed down Borough of Duryea v. Guarnieri, 131 S. Ct. — (2011), which expressly rejected the minority position of the Third Circuit–see San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994)–and adopted that of the other circuits. Specifically, the Court held that a public employee who claims government employer retaliation in violation of the Petition Clause must demonstrate that his or her petition raises a matter of public concern and is not just a private grievance. Otherwise, the public employee may not rely on the Petition Clause.
In the case before the Court, the § 1983 plaintiff, a former police chief, alleged retaliation because he had both filed a grievance and brought his § 1983 action against the defendant borough. A jury awarded compensatory damages to the plaintiff and the Third Circuit affirmed, relying on its position that the Petition Clause may be used in public employee retaliation cases even if grievances and lawsuits giving rise to the alleged retaliation involved matters of private concern.
The Court, in an opinion by Justice Kennedy, reversed. It assumed that both grievances and lawsuits were generally protected by the Petition Clause but emphasized that its decision in this case related only to Petition Clause claims by public employees against their government employers. It then went on to rule that in the public employment setting, the Petition Clause was no broader in scope than the Free Speech Clause which had long had a public concern requirement. See Connick v. Myers, 461 U.S. 138 (1983).
(See also Pickering v. Board of Educ., 391 U.S. 563 (1968), dealing with balancing where public employee speech involves a matter of public concern, and Garcetti v. Ceballos, 547 U.S. 410 (2006), which excluded Free Speech Clause protection from government employer retaliation for public employee speech that is part of the employee’s job responsibilities; I extensively criticize Garcetti in my post of December 8, 2009).
Like speech, the Court argued, petitions could interfere with the efficient and effective operation of government; indeed, lawsuits were often even more disruptive than speech because they called for a government response. Further, judicial second-guessing and intervention imposed significant costs on government employers. Where a petition such as a grievance raised only an issue of private concern, the public employee was not acting as a citizen but was rather complaining to the government as employer, not as sovereign. Such a public employee should accordingly not be protected by the Petition Clause any more than a public employee raising an issue of private concern was protected by the Free Speech Clause under Connick. Read the rest of this entry »