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Annotation 14 - First Amendment

  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  

  Government as Employer : Political and Other Outside Activities--Abolition of the ''spoils system'' in federal employment brought with it consequent 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.

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 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.

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 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.

The Hatch Act cases were distinguished in United States v. National Treasury Employees Union, Supp.24 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. Supp.25 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. Supp.26  

  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 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.'' 95  

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  

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 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  

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  

Pickering was distinguished in Connick v. Myers, 106 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. 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  

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 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 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.'' Supp.27  

Thus, although the public employer cannot muzzle its employees or penalize them for their expressions and associations to the same extent that a private employer can (the First Amendment, inapplicable to the private employer, is applicable to the public employer), 114 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. If the speech does relate to a matter of public concern, then Pickering's balancing test (as modified by Connick) is employed, the governmental interests in efficiency, workplace harmony, and the satisfactory performance of the employee's duties 115 being balanced against the employee's First Amendment rights. While the general approach is relatively easy to describe, it has proven difficult to apply. 116 The First Amendment, however, does not stand alone in protecting the speech of public employees; statutory protections for ''whistleblowers'' add to the mix. 117  

  Government as Educator .--While the Court had previously made clear that students in public schools were entitled to some constitutional protection 118 and that minors generally were not outside the range of constitutional protection, 119 its first attempt to establish standards of First Amendment expression guarantees against curtailment by school authorities came in Tinker v. Des Moines Independent Community School District. 120 There, high school principals had banned the wearing of black armbands by students in school as a symbol of protest against United States actions in Viet Nam. Reversing the refusal of lower courts to reinstate students who had been suspended for violating the ban, the Court set out the balance to be drawn. ''First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the school house gate. . . . On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.'' 121 Restriction on expression by school authorities is only permissible to prevent disruption of educational discipline. ''In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition cannot be sustained.'' 122  

Tinker was reaffirmed by the Court in Healy v. James, 123 in which it held that the withholding of recognition by a public college administration from a student organization violated the students' right of association, which is a construct of First Amendment liberties. Denial of recognition, the Court held, was impermissible if it had been based on the local organization's affiliation with the national SDS, or on disagreement with the organization's philosophy, or on a fear of disruption with no evidentiary support. ''First Amendment rights must always be applied 'in light of the special characteristics of the . . . environment' in the particular case. . . . And, where state-operated educational institutions are involved, this Court has long recognized 'the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.'. . . Yet, the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, '[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.' . . . The college classroom with its surrounding environs is peculiarly the 'market place of ideas' and we break no new constitutional ground in reaffirming this Nation's dedication to safeguarding academic freedom.'' 124 But a college may impose reasonable regulations to maintain order and preserve an atmosphere in which learning may take place, and it may impose as a condition of recognition that each organization affirm in advance its willingness to adhere to reasonable campus law. 125  

While a public college may not be required to open its facilities generally for use by student groups, once it has done so it must justify any discriminations and exclusions under applicable constitutional norms, such as those developed under the public forum doctrine. Thus, it was constitutionally impermissible for a college to close off its facilities, otherwise open, to students wishing to engage in religious speech. 126 To be sure, a decision to permit access by religious groups had to be evaluated under First Amendment religion standards, but equal access did not violate the religion clauses. Compliance with stricter state constitutional provisions on church-state was a substantial interest, but it could not justify a content-based discrimination in violation of the First Amendment speech clause. 127 By enactment of the Equal Access Act in 1984, 128 Congress applied the same ''limited open [public] forum'' principles to public high schools, and the Court upheld the Act against First Amendment challenge. 129  

When faced with another conflict between a school system's obligation to inculcate community values in students and the expression rights of those students, the Court splintered badly, remanding for full trial a case challenging the authority of a school board to remove certain books from high school and junior high school libraries. 130 In dispute were the school board's reasons for removing the books--whether, as the board alleged, because of vulgarity and other content-neutral reasons, or whether also because of political disagreement with contents. The plurality conceded that school boards must be permitted ''to establish and apply their curriculum in such a way as to transmit community values,'' and that ''there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political.'' At the same time, the plurality thought that students retained substantial free expression protections and that among these was the right to receive information and ideas. Carefully limiting its discussion to the removal of books from a school library, thereby excluding acquisition of books as well as questions of school curricula, the plurality would hold a school board constitutionally disabled from removing library books in order to deny access to ideas with which it disagrees for political reasons. 131 The four dissenters basically rejected the contention that school children have a protected right to receive information and ideas and thought that the proper role of education was to inculcate the community's values, a function into which the federal courts could rarely intrude. 132 The decision provides little guidance to school officials and to the lower courts and assures a revisiting of the controversy by the Supreme Court.

Tinker was distinguished in Hazelwood School Dist. v. Kuhlmeier, 133 the Court relying on public forum analysis to hold that editorial control and censorship of a student newspaper sponsored by a public high school need only be ''reasonably related to legitimate pedagogical concerns.'' 134 ''The question whether the First Amendment requires a school to tolerate particular student speech--the question that we addressed in Tinker--is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech.'' 135 The student newspaper had been created by school officials as a part of the school curriculum, and served ''as a supervised learning experience for journalism students.'' Because no public forum had been created, school officials could maintain editorial control subject only to a reasonableness standard. Thus, a principal's decisions to excise from the publication an article describing student pregnancy in a manner believed inappropriate for younger students, and another article on divorce critical of a named parent, were upheld.

The category of school-sponsored speech subject to Kuhlmeier analysis appears to be far broader than the category of student expression still governed by Tinker. School-sponsored activities, the Court indicated, can include ''publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a tradi tional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.'' 136 Because most primary, intermediate, and secondary school environments are tightly structured, with few opportunities for unsupervised student expression, 137 Tinker apparently has limited applicability. It may be, for example, that students are protected for off-premises production of ''underground'' newspapers (but not necessarily for attempted distribution on school grounds) as well as for non-disruptive symbolic speech. For most student speech at public schools, however, Tinker's tilt in favor of student expression, requiring school administrators to premise censorship on likely disruptive effects, has been replaced by Kuhlmeier's tilt in favor of school administrators' pedagogical discretion. 138  

Governmental regulation of the school and college administration can also implicate the First Amendment. But the Court dismissed as too attenuated a claim to a First Amendment-based academic freedom privilege to withhold peer review materials from EEOC subpoena in an investigation of a charge of sex discrimination in a faculty tenure decision. 139  


[Footnote 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.

[Footnote 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.

[Footnote 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).

[Footnote 82] The Commission on Political Activity of Government Personnel, Findings and Recommendations 11, 19-24 (Washington: 1968).

[Footnote 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.

[Footnote 84] Id. at 94-95.

[Footnote 85] Id. at 101, 102.

[Footnote 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).

[Footnote 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.

[Footnote 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.

[Footnote 89] Id. at 556.

[Footnote 90] Id. at 578-79.

[Footnote 91] Id. at 580-81.

[Footnote 92]   462 U.S. 367 (1983).

[Footnote 24 (1996 Supplement)] 115 S. Ct. 1003 (1995).

[Footnote 25 (1996 Supplement)] 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 ''thevast rank and file of federal employees below grade GS-16.''

[Footnote 26 (1996 Supplement)] 115 S. Ct. at 1018.

[Footnote 93] McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517 (1892).

[Footnote 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).

[Footnote 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).

[Footnote 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).

[Footnote 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).

[Footnote 98] Pickering v. Board of Education, 391 U.S. 563, 568 (1968).

[Footnote 99] Id.

[Footnote 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.

[Footnote 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.

[Footnote 102]   416 U.S. 134 (1974). The quoted language is from 5 U.S.C. Sec. 7501(a).

[Footnote 103] Civil Service Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 578 -79 (1973).

[Footnote 104] Arnett v. Kennedy, 416 U.S. 134, 158 -64 (1974).

[Footnote 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.

[Footnote 106]   461 U.S. 138 (1983).

[Footnote 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.

[Footnote 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.

[Footnote 109] Id. at 151-52.

[Footnote 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.

[Footnote 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.

[Footnote 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.

[Footnote 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.

[Footnote 27 (1996 Supplement)] Board of County Comm'rs v. Umbehr, 116 S. Ct. 2342, 2346 (1996).

[Footnote 114] See, 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 (1977) (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).

[Footnote 115] In 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).

[Footnote 116] For analysis of the 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, 114 S. Ct. 1878 (1994), the Court grappled with what procedural protections may be required by the First Amendment when public employees are dismissed on speech-related grounds, but reached no consensus.

[Footnote 117] The principal federal law is the Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16, 5 U.S.C. Sec. 1201 et seq.

[Footnote 118] West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (flag salute); Meyer v. Nebraska, 262 U.S. 390 (1923) (limitation of language curriculum to English); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (compulsory school attendance in public rather than choice of public or private schools).

[Footnote 119] In re Gault, 387 U.S. 1 (1967). Of course, children are in a number of respects subject to restrictions which would be impermissible were adults involved. E.g., Ginsberg v. New York, 390 U.S. 629 (1968); Rowan v. Post Office Dept., 397 U.S. 728 (1970) (access to objectionable and perhaps obscene materials).

[Footnote 120]   393 U.S. 503 (1969).

[Footnote 121] Id. at 506, 507.

[Footnote 122] Id. at 509. The internal quotation is from Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966). See also Papish v. Board of Curators, 410 U.S. 667 (1973) (state university could not expel a student for using ''indecent speech'' in campus newspaper). However, offensive ''indecent'' speech in the context of a high school assembly is punishable by school authorities. See Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (upholding 2-day suspension, and withdrawal of privilege of speaking at graduation, for student who used sophomoric sexual metaphor in speech given to school assembly).

[Footnote 123]   408 U.S. 169 (1972).

[Footnote 124] Id. at 180. The internal quotations are from Tinker, 393 U.S. 503, 506 , 507 (1969), and from Shelton v. Tucker, 364 U.S. 479, 487 (1960).

[Footnote 125] Healy v. James, 408 U.S. at 193 . Because a First Amendment right was in issue, the burden was on the college to justify its rejection of a request for recognition rather than upon the requesters to justify affirmatively their right to be recognized. Id. at 184. Justice Rehnquist concurred in the result, because in his view a school administration could impose upon students reasonable regulations that would be impermissible if imposed by the government upon all citizens; consequently, cases cited by the Court which had arisen in the latter situation he did not think controlling. Id. at 201. See also Grayned v. City of Rockford, 408 U.S. 104 (1972), in which the Court upheld an antinoise ordinance that forbade persons on grounds adjacent to a school to willfully make noise or to create any other diversion during school hours that ''disturbs or tends to disturb'' normal school activities.

[Footnote 126] Widmar v. Vincent, 454 U.S. 263 (1981).

[Footnote 127] Id. at 270-76. Whether the holding extends beyond the college level to students in high school or below who are more ''impressionable'' and perhaps less able to appreciate that equal access does not compromise the school's neutrality toward religion, id. at 274 n.14, is unclear. See Brandon v. Board of Education, 635 F.2d 971 (2d Cir. 1980), cert. denied, 454 U.S. 1123 (1981).

[Footnote 128] Pub. L. No. 98-377, title VII, 98 Stat. 1302, 20 U.S.C. Sec. Sec. 4071-74.

[Footnote 129] Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226 (1990). There was no opinion of the Court on the Establishment Clause holding. A plurality opinion, id. at 247-53, rejected Justice Marshall's contention, id. at 263, that compulsory attendance and other structured aspects of the particular high school setting in Mergens differed so significantly from the relatively robust, open college setting in Widmar as to suggest state endorsement of religion.

[Footnote 130] Board of Education v. Pico, 457 U.S. 853 (1982).

[Footnote 131] Id. 862, 864-69, 870-72. Only Justices Marshall and Stevens joined fully Justice Brennan's opinion. Justice Blackmun joined it for the most part with differing emphases. Id. at 875. Justice White refrained from joining any of the opinions but concurred in the result solely because he thought there were unresolved issues of fact that required a trial. Id. at 883.

[Footnote 132] The principal dissent was by Justice Rehnquist. Id. at 904. See also id. at 885 (Chief Justice Burger), 893 (Justice Powell), 921 (Justice O'Connor).

[Footnote 133] 484 U.S.260 (1988).

[Footnote 134] Id. at 273.

[Footnote 135] Id. at 270-71.

[Footnote 136] Id. at 271. Selection of materials for school libraries may fall within this broad category, depending upon what is meant by ''designed to impart particular knowledge or skills.'' See generally Stewart, The First Amendment, the Public Schools, and the Inculcation of Community Values, 18 J. Law & Educ. 23 (1989).

[Footnote 137] The Court in Kuhlmeier declined to decide ''whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level.'' 484 U.S. at 274 n.7.

[Footnote 138] One exception may exist for student religious groups covered by the Equal Access Act; in this context the Court seemed to step back from Kuhlmeier's broad concept of curriculum-relatedness, seeing no constitutionally significant danger of perceived school sponsorship of religion arising from application of the Act's requirement that high schools provide meeting space for student religious groups on the same basis that they provide such space for student clubs. Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226 (1990).

[Footnote 139] University of Pennsylvania v. EEOC, 493 U.S. 182 (1990).


Annotations p. 14