Connick v. Myers

"The District Court got off on the wrong foot in this case" White wrote, when it found that all the matters on the questionnaire had been of public concern. He noted that Pickering had been very emphatic in making that qualification, and reviewed the history of the law in that area.[12]

For most of the 20th century, judges had followed a maxim of Oliver Wendell Holmes when he found in favor of the city of New Bedford as a justice of the Massachusetts Supreme Judicial Court: "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman."[13] Throughout the early 20th century the Supreme Court had held similarly. Around the beginning of the McCarthy era in the middle of the century, as public employees were required to sign loyalty oaths and deny or repudiate past membership in the Communist Party or similar organizations, the Court sided with challenges to those laws, often by holding them too vague to be enforceable. These culminated in Keyishian v. Board of Regents,[14] where the Court struck down a broad range of New York statutes and regulations requiring faculty at state-run colleges and universities to certify that they had never been members of the Communist Party.[note 2]

Pickering had built on those cases and established a new line, that concerning public employees' right to speak on matters of public concern. "[These cases] lead us to conclude that, if Myers' questionnaire cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge", White wrote.

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. Perhaps the government employer's dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable.[15]

The majority did not find most of Myers' questions, those relating to transfer policies within the office, to be likely matters of public concern. "Indeed, the questionnaire, if released to the public, would convey no information at all other than the fact that a single employee is upset with the status quo." Rather, White said, Myers' real aim had been "to gather ammunition for another round of controversy with her superiors. These questions reflect one employee's dissatisfaction with a transfer and an attempt to turn that displeasure into a cause célèbre ... While, as a matter of good judgment, public officials should be receptive to constructive criticism offered by their employees, the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs."[16]

Myers' question on whether employees felt pressured to work on campaigns did, White agreed, touch on a legitimate public concern. For that reason the Court had to determine whether the firing was justified nevertheless. White found Gordon's burden on Connick "unduly onerous". The district court judge, he wrote, had failed to take into account language in Pickering that said the state's burden in showing that the employee's speech impaired his or her ability to discharge official duties varies with the nature of the speech.[17]

While Gordon had properly found that Connick had offered no convincing evidence that Myers' own job responsibilities had been affected, White disagreed that there had been no impact on her working relationships with Connick or her coworkers. "When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer's judgment is appropriate", White wrote. "Furthermore, we do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action."[note 3][18]

White rejected Gordon's analysis of the questionnaire as less subversive than outright criticism. "Questions, no less than forcefully stated opinions and facts, carry messages and it requires no unusual insight to conclude that the purpose, if not the likely result, of the questionnaire is to seek to precipitate a vote of no confidence in Connick and his supervisors." Following Givhan, he also found the time, place and manner relevant, since Myers had distributed her questionnaire in the office during work hours, shortly after her meeting with Connick, timing Myers said was intentional on her part. "When employee speech concerning office policy arises from an employment dispute concerning the very application of that policy to the speaker, additional weight must be given to the supervisor's view that the employee has threatened the authority of the employer to run the office."[19]

"The limited First Amendment interest involved here," White began his conclusion, "does not require that Connick tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships." He said the decision was not a narrowing of free speech rights but a reasonable response to the facts of the case. "[I]t would indeed be a Pyrrhic victory for the great principles of free expression if the Amendment's safeguarding of a public employee's right, as a citizen, to participate in discussions concerning public affairs were confused with the attempt to constitutionalize the employee grievance that we see presented here."[20]

"It is hornbook law," Brennan wrote, "that speech about 'the manner in which government is operated or should be operated' is an essential part of the communications necessary for self-governance the protection of which was a central purpose of the First Amendment." Unlike the majority, he believed that Myers' questionnaire raised issues worthy of constitutional protection.[21]

He found the majority's holding "flawed in three respects":

• it read Pickering to hold that the context of a statement should be considered not only in assessing whether it impaired a public employee's work function but also whether it was a matter of public interest;
• it did not consider the effect of personnel policies on the efficiency of the district attorney's office to be a matter of public concern, and
• it misapplied the Pickering balancing test by holding that Myers could have been properly fired even though one of her concerns was undeniably a matter of public interest without evidence that her conduct disrupted the office.[22]

Brennan chastised the majority for using Givhan in this case to distinguish between speech on subjects of inherent public concern and issues of public import that might become public concern. He thought the context of the speech was irrelevant, pointing in a footnote to the extensive media coverage the incident received, as well as other coverage of the internal operations of Connick's office, in the Times-Picayune, New Orleans' daily newspaper. "The First Amendment affords special protection to speech that may inform public debate about how our society is to be governed—regardless of whether it actually becomes the subject of a public controversy."[23]

Although all five of the supervisors named in the questionnaire had testified at trial that they could continue working with Myers were she to return, the majority had given greater weight to what it held to be Connick's reasonable belief that the distribution of the questionnaire would adversely affect his authority. "Such extreme deference to the employer's judgment is not appropriate" for public employment, Brennan responded. He pointed to Tinker v. Des Moines Independent Community School District, the landmark free-speech case in which the Court had upheld the right of high-school students to wear black armbands to school in protest against the Vietnam War.[24] In that case a majority had held that the school officials' fear that the armbands would be disruptive, without any other evidence, did not justify prohibiting them. He did not see a difference in this case.[25]

"The Court's decision today inevitably will deter public employees from making critical statements about the manner in which government agencies are operated for fear that doing so will provoke their dismissal," Brennan said, in conclusion. "As a result, the public will be deprived of valuable information with which to evaluate the performance of elected officials."[25]

Four years later, in 1987, the Court again had to consider whether a public employee's speech could constitutionally cost her her job. The respondent in Rankin v. McPherson was a Harris County, Texas, deputy constable, newly hired and on probationary status in 1981, when she heard about the assassination attempt on President Ronald Reagan. She told a coworker that "if they go for him again, I hope they get him". Another deputy constable who overheard it told the constable, who fired her.[28]

A 5-4 majority found that her First Amendment rights had been violated. Thurgood Marshall wrote that the speech was on a clear matter of public concern, the president's health. Applying Connick and considering the context, he held that the statement was not disruptive to the function of the constable's office[note 4] and therefore was protected speech.[29] Lewis Powell, a member of the Connick majority, wrote in a separate concurrence that it was so private as to not even need the analysis required by that case. "It will be an unusual case where the employer's legitimate interests will be so great as to justify punishing an employee for this type of private speech that routinely takes place at all levels in the workplace."[30]

Antonin Scalia, appointed to the Court by Reagan to replace Burger, wrote in dissent that Myers' questionnaire had far more of a claim to legitimate public interest than McPherson's remark. "Once [she] stopped explicitly criticizing the President's policies and expressed a desire that he be assassinated, she crossed the line." Even if it were a matter of public concern, he continued, the constable had a strong interest, recognized in prior case law, in protecting its public image, in particular since his office was a law enforcement agency.[31]

The next case to consider the First Amendment rights of public employees was Waters v. Churchill. In that 1994 case, from the Seventh Circuit, a nurse at an Illinois state hospital charged that her dismissal after remarks she made to a coworker expressing concern about the effect a supervisor's cross-training policies were having on patient care were reported to that supervisor. As in Connick, the speech at issue included personal matters as well as matters of possible public concern. It was distinguished by a dispute of fact between the parties as to the substance of the remark.

O'Connor, writing for a four-justice plurality, held that due to the dispute the Connick test should have been applied to what the supervisor reasonably believed Churchill had said, rather than what a trier of fact might find. Since the former was that she had generally disparaged the supervisor and discussed various personal disputes with her, there was no need to assess whether the statements were, as Churchill had claimed, matters of public concern.[32] Scalia's concurrence, signed by the other three justices, complained that her opinion left open the question of how courts should resolve the question if the employer's belief was found to be unreasonable. "Loose ends are the inevitable consequence of judicial invention," he complained. "We will spend decades trying to improvise the limits of this new First Amendment procedure that is unmentioned in text and unformed by tradition."[33] John Paul Stevens, writing for himself and fellow dissenter Harry Blackmun, likewise found this unnecessary. "The [constitutional] violation does not vanish merely because the firing was based upon a reasonable mistake about what the employee said," he wrote. "A proper regard for that principle requires that, before firing a public employee for her speech, management get its facts straight."[34]

In 2004, the Court issued a per curiam opinion in San Diego v. Roe that provided with another opportunity to discuss Connick. It reversed the Ninth Circuit and upheld the firing of a police officer who sold pornographic videos of himself, wearing a generic police uniform, on eBay. The opinion admitted "the boundaries of the public concern test are not well-defined", but found it useful in determining that the officer's pornographic videos were not, as the Ninth Circuit had held, commentary on matters of public concern. "[E]ven under the view expressed by the dissent in Connick from four Members of the Court," it said, "the speech here would not come within the definition of a matter of public concern" since it did not inform the public about the police department's activities. It was "linked to his official status as a police officer, and designed to exploit his employer's image."[35]

In 2006, a similar case, in that it involved an assistant district attorney in a large city challenging a nationally known superior over a job action, came before the Court. In Garcetti v. Ceballos, a Los Angeles County prosecutor claimed the office of Gil Garcetti had retaliated against him with a series of adverse personnel moves after he questioned the veracity of a search warrant affidavit following a conversation with a defense attorney, to the point of testifying to them in a hearing. It was initially argued with O'Connor's seat vacant following her retirement, and the justices deadlocked. Following the appointment of Samuel Alito, it was reargued and he cast the deciding vote to reverse the Ninth Circuit and find that Ceballos had not been unduly deprived of his First Amendment rights.

For the majority, Anthony Kennedy found that while Ceballos was speaking on a matter of undeniable public concern, his speech, unlike Myers' or those in the other cases, was made as part of his job duties. Therefore, the First Amendment did not reach it. "Restricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen," Kennedy wrote. "It simply reflects the exercise of employer control over what the employer itself has commissioned or created".[36] He cited language from his majority opinion in Rosenberger v. University of Virginia to the effect that the government has control over all speech it pays for.[37]

David Souter, in one of three dissents, used Connick to indicate one extreme of the continuum of free speech claims, that where no constitutional interest could be found.[note 5] He argued the majority was applying precedents in an overly broad fashion; Ceballos was not being paid for his speech as much for his legal skills. "The only sense in which his position apparently required him to hew to a substantive message was at the relatively abstract point of favoring respect for law and its evenhanded enforcement, subjects that are not at the level of controversy in this case."[38] Stephen Breyer also noted that Ceballos had professional and ethical reasons that could have compelled him to speak as he did, and the Court should have been mindful of that.[39]

In another case from the 1987 term, White's "common-sense realization that government offices could not function if every employment decision became a constitutional matter" became the guiding principle for evaluating public employees' Fourth Amendment rights during non-criminal administrative investigations. In O'Connor v. Ortega, Sandra Day O'Connor cited that aspect of the holding when she wrote for a four-justice plurality that while public employees did not lose their Fourth Amendment rights by virtue of their employment the government need only meet a reasonable suspicion standard in order to search their desks or belongings to investigate alleged violations of workplace policy.[40] Waters expanded on that with another holding, that the government has a lower standard to uphold in meeting its constitutional obligations when it acts as employer instead of sovereign. Both would be quoted again in 2010, when Ontario v. Quon considered the same issue in holding unanimously that an audit of police pagers which revealed sexually explicit personal messages was legitimately work-related and constitutional.[41]