''Connick v. Myers'', 461 U.S. 138 (1983), is a

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

decision concerning the

First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and reco ...

rights of public employees who speak on matters of possible public concern within the workplace context. It was first brought by Sheila Myers, an

Orleans Parish, Louisiana New Orleans ( , ,New Orleans

fired by her superior,

District Attorney In the United States, a district attorney (DA), county attorney, state's attorney, prosecuting attorney, commonwealth's attorney, or state attorney is the chief prosecutor and/or chief law enforcement officer representing a U.S. state in a ...

Harry Connick Sr. Joseph Harry Fowler Connick (born March 27, 1926) is an American attorney who served as the district attorney of Orleans Parish (New Orleans), Louisiana from 1973 to 2003. His son, Harry Connick Jr., is an American musician. Connick is also a s ...

, when, after receiving a transfer she had fiercely resisted in private conversations with him and his chief assistant district attorney, she distributed a questionnaire to her fellow prosecutors asking about their experience with Connick's management practices. At trial, Judge Jack Gordon of the Eastern District of Louisiana found the firing had been motivated by the questionnaire and was thus an infringement on her right to speak out on matters of public concern as a public employee. After the

Fifth Circuit The United States Court of Appeals for the Fifth Circuit (in case citations, 5th Cir.) is a federal court with appellate jurisdiction over the district courts in the following federal judicial districts: * Eastern District of Louisiana * Mi ...

affirmed the verdict, Connick appealed to the Supreme Court. The justices reversed the lower courts by a 5–4 margin. Justice

Byron White Byron "Whizzer" Raymond White (June 8, 1917 April 15, 2002) was an American professional football player and jurist who served as an associate justice of the U.S. Supreme Court from 1962 until his retirement in 1993. Born and raised in Colo ...

wrote for the

majority A majority, also called a simple majority or absolute majority to distinguish it from related terms, is more than half of the total.Dictionary definitions of ''majority'' aMerriam-WebsterWilliam Brennan argued in

dissent Dissent is an opinion, philosophy or sentiment of non-agreement or opposition to a prevailing idea or policy enforced under the authority of a government, political party or other entity or individual. A dissenting person may be referred to as ...

that the majority's application of

precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great v ...

was flawed. He argued that ''all'' the matters in the questionnaire were of public concern, and feared a

chilling effect In a legal context, a chilling effect is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction. A chilling effect may be caused by legal actions such as the passing of a law, the ...

on speech by public employees about such matters would result. The case was the first in a line considering the right of public employees to speak contemporaneously with their employment that had started with '' Pickering v. Board of Education'' (1968) fifteen years earlier in which the Court sided with the employee. It introduced the test of whether the employee's speech had been on matters of public concern to the balancing of employer and employee interest prescribed in the earlier case. The two would guide the Court's interpretation of later cases such as '' Rankin v. McPherson'' (1987). In the 1990s and 2000s, '' Waters v. Churchill'' (1994) and ''

Garcetti v. Ceballos ''Garcetti v. Ceballos'', 547 U.S. 410 (2006), is a U.S. Supreme Court decision involving First Amendment free speech protections for government employees. The plaintiff in the case was a district attorney who claimed that he had been passed up for ...

'' (2006), the latter with some similarities to the circumstances of ''Connick'', would further clarify the Court's holding.

Underlying dispute

By 1980, Myers had been an assistant district attorney for more than five years. She had been an effective

trial attorney A lawyer is a person who practices law. The role of a lawyer varies greatly across different legal jurisdictions. A lawyer can be classified as an advocate, attorney, barrister, canon lawyer, civil law notary, counsel, counselor, solicitor, ...

who had turned down promotions to remain in the courtroom. She had also participated in programs at

law school A law school (also known as a law centre or college of law) is an institution specializing in legal education, usually involved as part of a process for becoming a lawyer within a given jurisdiction. Law degrees Argentina In Argentina, ...

s in the

New Orleans New Orleans ( , ,New Orleans

area and participated in programs sponsored by Connick's office. A judge had also persuaded her to take part in a

probation Probation in criminal law is a period of supervision over an offender, ordered by the court often in lieu of incarceration. In some jurisdictions, the term ''probation'' applies only to community sentences (alternatives to incarceration), such ...

program for juvenile first offenders he ran. In October of that year, Myers was told she would be transferred to the section run by that judge. She enjoyed the position she was in at the time, in another judge's section, and feared that if she were transferred she would have to recuse herself from cases where she had counseled defendants in the program. She expressed these concerns to Dennis Waldron, the chief assistant district attorney, and Bridget Bane, the head of training for the office. She raised these concerns again in another meeting with Waldron and Connick about another subject. The next morning she received the formal

memorandum A memorandum ( : memoranda; abbr: memo; from the Latin ''memorandum'', "(that) which is to be remembered") is a written message that is typically used in a professional setting. Commonly abbreviated "memo," these messages are usually brief and ...

making the transfer. At another meeting with Waldron, she repeated her unhappiness and broadened her concerns to include other issues in the office she was concerned about. She said Waldron told her that those concerns were not shared, to which she responded that she would research that. That night she was unable to sleep. She instead prepared a questionnaire about her concerns for distribution to her coworkers. Early the next morning, she made 40 copies. Connick came in, canceling a day off, to discuss the transfer with her again. She told him she would "consider" the transfer. At lunch she distributed the questionnaire to 17 other assistant district attorneys personally. Most accepted them. Waldron learned what was happening and called Connick about a "mini-insurrection" taking place. Connick was particularly disturbed by questions about whether respondents felt confident in Waldron, Bane and other supervisors, and about whether ADAs felt pressured to work on his political campaigns, feeling it would be damaging if it got into the media. He called Myers into his office and told her she was fired, effective at the end of the day. She continued to come in for another three days, putting her files and case notes in order.

Litigation

Shortly after her dismissal, Myers filed a

Section 1983 The Enforcement Act of 1871 (), also known as the Ku Klux Klan Act, Third Enforcement Act, Third Ku Klux Klan Act, Civil Rights Act of 1871, or Force Act of 1871, is an Act of the United States Congress which empowered the President to suspend ...

suit in federal court for the Eastern District of Louisiana, against Connick both personally and in his official capacity. She alleged violation of her

rights and sought back pay, reinstatement and compensatory and

punitive damages Punitive damages, or exemplary damages, are damages assessed in order to punish the defendant for outrageous conduct and/or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. ...

. At first she sought a

preliminary injunction An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in p ...

, but Judge Jack Gordon converted it to a trial on the merits. It was held before him two months after the firing. Myers argued that she had been fired for distributing the questionnaire; Connick claimed it was a matter of her

insubordination Insubordination is the act of willfully disobeying a lawful order of one's superior. It is generally a punishable offense in hierarchical organizations such as the armed forces, which depend on people lower in the chain of command obeying ord ...

in refusing to accept the transfer. Myers and Connick's attorneys, George Strickler and William Wessel respectively, would represent their clients throughout the case. Wessel was himself a former assistant district attorney, and had in that capacity been the first to

interview An interview is a structured conversation where one participant asks questions, and the other provides answers.Merriam Webster DictionaryInterview Dictionary definition, Retrieved February 16, 2016 In common parlance, the word "interview" ...

Myers when she had applied to Connick's office. He shared his former superior's positive assessment of her prosecutorial skills. In February 1981 Gordon issued his decision. After recounting the facts of the case, he found for Myers. "The

preponderance of the evidence In a legal dispute, one party has the burden of proof to show that they are correct, while the other party had no such burden and is presumed to be correct. The burden of proof requires a party to produce evidence to establish the truth of facts ...

in this case," he wrote," indicates that the plaintiff was fired by the defendant because of her circulation of the questionnaire within the District Attorney's Office." He noted in support that another ADA testified that she had been preparing for her new cases with him, and that Connick had returned home after their morning meeting, satisfied with her answer. Only after Waldron's call about the questionnaire did he return and fire her. Having established the facts, Gordon turned to the law. He applied the test from '' Mt. Healthy City Bd. of Ed. v. Doyle'','' Mt. Healthy City Bd. of Ed. v. Doyle'', . a 1977 Supreme Court decision overturning the firing of a teacher for, among other things, sharing a proposed dress code with the media. First, Myers would have to prove that her distribution of the questionnaire was constitutionally protected speech, and that her firing was a result. If she could establish that, the burden would then be on Connick to show that she would have been fired whether she had distributed the questionnaire or not. Gordon relied on '' Pickering v. Board of Education'','' Pickering v. Board of Education'', . for the first test. In that landmark 1968 case, the Court had unanimously overturned the firing of a teacher who had written a letter to the editor of a local newspaper criticizing the school board and

superintendent Superintendent may refer to: *Superintendent (police), Superintendent of Police (SP), or Senior Superintendent of Police (SSP), a police rank *Prison warden or Superintendent, a prison administrator *Superintendent (ecclesiastical), a church exec ...

for its allocation of school finances. Gordon quoted

Thurgood Marshall Thurgood Marshall (July 2, 1908 – January 24, 1993) was an American civil rights lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1967 until 1991. He was the Supreme Court's first African-A ...

's majority opinion: "'Statements by public officials on matters of public concern must be afforded First Amendment protection' even though the statements may be directed at the public officials' 'nominal superiors.'" In a more recent case, '' Givhan v. Western Line Consolidated School District'','' Givhan v. Western Line Consolidated School District'', . the Court had also held that the First Amendment protected private speech by public employees on matters of public concern. These two cases, Gordon wrote, established the possibility that her distribution of the questionnaires was constitutionally protected. "Taken as a whole," Gordon continued," the issues presented in the questionnaire relate to the effective functioning of the District Attorney's Office and are matters of public importance and concern." He returned to ''Pickering'', which further required a balancing test between Myers' free-speech interests and Connick's interest in the efficient operation of a public agency. A 1974

decision offered language that clarified this test: " is incumbent upon he governmentto clearly demonstrate that the employee's conduct substantially and materially interferes with the discharge of duties and responsibilities inherent in ublicemployment."''Smith v. United States'', The decision upheld the firing of a clinical psychologist who had insisted on wearing a pin with a

peace symbol A number of peace symbols have been used many ways in various cultures and contexts. The dove and olive branch was used symbolically by early Christians and then eventually became a secular peace symbol, popularized by a ''Dove'' lithograph b ...

while on the job at a veterans' hospital despite repeated requests from his superiors to stop, as it could have unnecessarily upset patients. For specifics Gordon looked to a 1972 Seventh Circuit decision that had offered four areas where this balance might be considered: confidentiality, discipline and harmonious relations among coworkers, relations between the employee and his or her superior, and the extent to which employee speech affected job performance. Connick had not alleged that Myers had breached confidentiality. He had claimed that Myers violated office policy and thus impeded her job performance by photocopying the questionnaires. Gordon said Connick had offered no evidence of an office policy on photocopier use. "Even had such evidence been offered," he added, "this court could not conclude that such an act carries much weight in regard to striking a balance in the state's favor." Connick had also not shown any evidence that the distribution of the questionnaires on work time impeded her job performance. As an assistant district attorney, Gordon wrote, she was entitled to some latitude in her work hours. "There is no evidence to indicate that plaintiff was anything other than a hardworking, conscientious attorney who fulfilled the requirements imposed upon her by her job." Gordon called the last area, the purported effect of the questionnaire on relations between superiors and supervised, "the defendant's most forceful argument." He agreed it was important, but did not believe, as Connick did, that the mere act of distributing a questionnaire which asked, among other things, whether respondents trusted four named supervisors, was as prejudicial to discipline as a negative statement about those individuals would be. He cited a similar case where a college professor had alleged his contract was not renewed because of his role in disseminating a questionnaire. "

t was T, or t, is the twentieth letter in the Latin alphabet, used in the modern English alphabet, the alphabets of other western European languages and others worldwide. Its name in English is ''tee'' (pronounced ), plural ''tees''. It is deri ...

not a statement of fact but the presentation and solicitation of ideas and opinions" and thus even more clearly protected.
Lindsey v. Board of Regents of the University of Georgia
', 607 F.2d 672 (5th Cir., 1979). "When all factors are considered, it cannot be said that the defendant's interest in promoting the efficiency of the public services performed through his employees was either adversely affected or substantially impeded by plaintiff's distribution of the questionnaire", Gordon concluded. He thus found Myers had met her first test, and reiterated his finding of fact that she had been fired for the distribution of the questionnaire, which satisfied the second. Since that was the only possible reason he had found for her termination, it could not be alleged that she would have been fired without having done it, and thus she had won. Gordon held that Connick was acting out of his official capacity, so he could not personally be held liable. He ordered her reinstated, although he worried that "it would be difficult for plaintiff to achieve a harmonious working relationship" due to the lawsuit, if she did. He also ordered back pay, $1,500 in compensatory damages, as well as costs and fees, but denied her

declaratory relief A declaratory judgment, also called a declaration, is the legal determination of a court that resolves legal uncertainty for the litigants. It is a form of legally binding preventive by which a party involved in an actual or possible legal ma ...

and punitive damages, since there was no evidence that Connick had shown reckless or wanton disregard for her

civil rights Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life ...

. Connick appealed to the

, which summarily affirmed in mid-1981.

Before the Court

Connick petitioned the Supreme Court for ''

certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...

''. In 1982 the Court granted the request.. Strickler "had this sinking feeling", when he heard the news, since it meant at least four justices disagreed with the district court; likewise, Wessel said he knew Connick would win. The

American Civil Liberties Union The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States". T ...

and

National Education Association The National Education Association (NEA) is the largest labor union in the United States. It represents public school teachers and other support personnel, faculty and staffers at colleges and universities, retired educators, and college stud ...

filed ''

amicus curiae An ''amicus curiae'' (; ) is an individual or organization who is not a party to a legal case, but who is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case. The decision o ...

'' briefs for Myers urging affirmance.

Oral argument Oral arguments are spoken presentations to a judge or appellate court by a lawyer (or parties when representing themselves) of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also a ...

s were held in November. The justices' questions to both were primarily focused on clarifying the facts of the case and distinguishing it from the precedent cases. They focused on the sequence of events, and whether Gordon had properly balanced the two interests at stake.Oral argument in Connick v. Myers
November 1982, oyez.org, retrieved February 12, 2011. Wessel took issue with the idea that Myers' assignment could seriously be a matter of public interest. " rtainly the public is not interested in which assistant district attorney worked in Section A or Section I of the criminal district court." Not even the question asking if ADAs had felt pressured to work on Connick's campaigns, which he described as "thrown in", were of public interest, he argued, since they were not

civil service The civil service is a collective term for a sector of government composed mainly of career civil servants hired on professional merit rather than appointed or elected, whose institutional tenure typically survives transitions of political leaders ...

positions. Strickler challenged Wessel's insistence that Myers had been fired for her refusal to accept the transfer. Gordon had found differently, he said, because the record did not suggest that she had done so, and that she was planning to accept it. "Since the petitioner cannot really do anything with those facts," he said, "he urges this Court to hold as a matter of law that the content of this questionnaire was so totally devoid of value as to be ''per se'' unfit for protection under the First Amendment."

William Rehnquist William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American attorney and jurist who served on the U.S. Supreme Court for 33 years, first as an associate justice from 1972 to 1986 and then as the 16th chief justice from ...

asked him if the public interest argument would have covered the questionnaire had it been limited only to the question of whether the respondent trusted Connick's four lieutenants. Strickler noted in reply that none of them had said that impacted their working relationship with Myers. Connick, he added later, hadn't even consulted her immediate supervisor before firing her.

Decision

The Court announced its decision on April 20, 1983. By a 5-4 margin it had upheld Connick's firing of Myers, holding that her First Amendment rights had not been violated and the district court had imposed an overly onerous burden on him. Justice

wrote for a majority that also included Chief Justice

Warren Burger Warren Earl Burger (September 17, 1907 – June 25, 1995) was an American attorney and jurist who served as the 15th chief justice of the United States from 1969 to 1986. Born in Saint Paul, Minnesota, Burger graduated from the St. Paul Colleg ...

, Lewis Powell,

Sandra Day O'Connor Sandra Day O'Connor (born March 26, 1930) is an American retired attorney and politician who served as the first female associate justice of the Supreme Court of the United States from 1981 to 2006. She was both the first woman nominated and th ...

and

. William Brennan's dissent was signed by

Harry Blackmun Harry Andrew Blackmun (November 12, 1908 – March 4, 1999) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1970 to 1994. Appointed by Republican President Richard Nixon, Black ...

and

John Paul Stevens John Paul Stevens (April 20, 1920 – July 16, 2019) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1975 to 2010. At the time of his retirement, he was the second-oldes ...

Majority opinion

"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.''Connick v. Myers'', , 143, White, J. 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 New Bedford (Massachusett: ) is a city in Bristol County, Massachusetts. It is located on the Acushnet River in what is known as the South Coast region. Up through the 17th century, the area was the territory of the Wampanoag Native American p ...

as a justice of the

Massachusetts Supreme Judicial Court The Massachusetts Supreme Judicial Court (SJC) is the highest court in the Commonwealth of Massachusetts. Although the claim is disputed by the Supreme Court of Pennsylvania, the SJC claims the distinction of being the oldest continuously func ...

: "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman."''Connick'', 461 U.S. at 144 (citing ''McAuliffe v. Mayor of New Bedford''
155 Mass. 216, 220, 29 N.E. 517, 517
(1892)). Throughout the early 20th century the Supreme Court had held similarly. Around the beginning of the

McCarthy era McCarthyism is the practice of making false or unfounded accusations of subversion and treason, especially when related to anarchism, communism and socialism, and especially when done in a public and attention-grabbing manner. The term origina ...

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 A communist party is a political party that seeks to realize the socio-economic goals of communism. The term ''communist party'' was popularized by the title of '' The Manifesto of the Communist Party'' (1848) by Karl Marx and Friedrich Engel ...

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'','' Keyishian v. Board of Regents'', . 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.In that case Brennan had written the majority opinion, and White had joined Tom Clark's dissent. ''Pickering'' had built on those cases and established a new line, that concerning public employees' right to speak on matters of public concern. " hese caseslead 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. 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 is a Latin phrase meaning the existing state of affairs, particularly with regard to social, political, religious or military issues. In the sociological sense, the ''status quo'' refers to the current state of social structure and/or values. ...

''." 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 A cause célèbre (,''Collins English Dictionary – Complete and Unabridged'', 12th Edition, 2014. S.v. "cause célèbre". Retrieved November 30, 2018 from https://www.thefreedictionary.com/cause+c%c3%a9l%c3%a8bre ,''Random House Kernerman Webs ...

'' ... 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."''Connick'', 461 U.S. at 148. 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.''Connick'', 461 U.S. at 149–50. 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."White did qualify this latter point: "We caution that a stronger showing may be necessary if the employee's speech more substantially involved matters of public concern."''Connick'', 461 U.S. at 151–52. 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."''Connick'', 461 U.S. at 153. "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. " would indeed be a

Pyrrhic victory A Pyrrhic victory ( ) is a victory that inflicts such a devastating toll on the victor that it is tantamount to defeat. Such a victory negates any true sense of achievement or damages long-term progress. The phrase originates from a quote from ...

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."''Connick'', 461 U.S. at 154.

Dissent

"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.''Connick'', 461 U.S. at 156 (Brennan, J., dissenting). 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.''Connick'', 461 U.S. at 158 (Brennan, J., dissenting). 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 ''The Times-Picayune/The New Orleans Advocate'' is an American newspaper published in New Orleans, Louisiana, since January 25, 1837. The current publication is the result of the 2019 acquisition of ''The Times-Picayune'' (itself a result of th ...

'', 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."''Connick'', 461 U.S. at 159–60 (Brennan, J., dissenting). 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 ''Tinker v. Des Moines Independent Community School District'', 393 U.S. 503 (1969), was a landmark decision by the United States Supreme Court that defined First Amendment rights of students in U.S. public schools. The ''Tinker'' test, also k ...

'', 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 The Vietnam War (also known by #Names, other names) was a conflict in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. It was the second of the Indochina Wars and was officially fought between North Vie ...

.''

'', . 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.''Connick'', 461 U.S. at 166–70 (Brennan, J., dissenting). "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."

Aftermath

Sheila Myers continued practicing law and still does criminal defense work in New Orleans. Two decades later, in 2001, she said she had never expected her case to become the precedent it did. "I do believe that a positive outcome for me from the case is that people believe me when I say that I'm going to do something", she said. "I think people believe that I will stand up for what I believe in." However, she says public employees were "disserved" by it and hopes to live to see the decision overturned. She and Connick, as well as Waldron, who later became a state criminal court judge, remained on good terms. "It is kind of ironic that we are all still around," Myers says. "When I see them, I speak and they speak. I think there is a level of mutual respect." Connick, too, who served as district attorney until 2003, also was surprised it reached the nation's highest court. "All of this free-speech foolishness was nonsense ... An employer should be able to fire an employee who fails to follow orders, plain and simple."

Subsequent jurisprudence

Because of the difference in circumstances and its opposite holding, ''Connick'' was considered as the complement of ''Pickering'', establishing a test that required determining whether the employee's speech was on a matter of public concern. The Court has revisited the issue in three cases since 1983. White's caution against constitutionalizing every public employment dispute has also informed two cases on the Fourth Amendment rights of public employees in internal investigations.

''Rankin v. McPherson''

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 {{unreferenced, date=February 2012 A respondent is a person who is called upon to issue a response to a communication made by another. The term is used in legal contexts, in survey methodology, and in psychological conditioning. Legal usage In ...

in '' Rankin v. McPherson'' was a

Harris County, Texas Harris County is a county located in the U.S. state of Texas; as of the 2020 census, the population was 4,731,145, making it the most populous county in Texas and the third most populous county in the United States. Its county seat is Houston, ...

, deputy constable, newly hired and on probationary status in 1981, when she heard about the assassination attempt on President

Ronald Reagan Ronald Wilson Reagan ( ; February 6, 1911June 5, 2004) was an American politician, actor, and union leader who served as the 40th president of the United States from 1981 to 1989. He also served as the 33rd governor of California from 1967 ...

. 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.'' Rankin v. McPherson'', . A 5-4 majority found that her First Amendment rights had been violated.

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 officeRankin, he noted, had not even argued that it was. and therefore was protected speech.''Rankin'', 380 ''et seq''., Marshall, J. Lewis Powell, a member of the ''Connick'' majority, wrote in a separate

concurrence In Western jurisprudence, concurrence (also contemporaneity or simultaneity) is the apparent need to prove the simultaneous occurrence of both ("guilty action") and ("guilty mind"), to constitute a crime; except in crimes of strict liabilit ...

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."''Rankin'', 392–94, Powell, J., concurring.

Antonin Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...

, 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 hestopped 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 Law enforcement is the activity of some members of government who act in an organized manner to enforce the law by discovering, deterring, rehabilitating, or punishing people who violate the rules and norms governing that society. The term ...

agency.''Rankin'', 394 ''et seq.'', Scalia, J., dissenting.

''Waters v. Churchill''

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 A trier of fact or finder of fact is a person or group who determines which facts are available in a legal proceeding (usually a trial) and how relevant they are to deciding its outcome. To determine a fact is to decide, from the evidence present ...

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.'' Waters v. Churchill'', , 664 ''et seq.'', O'Connor, J. 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."''Waters'', 686 ''et seq/'', Scalia, J., concurring.

, writing for himself and fellow dissenter

, likewise found this unnecessary. "The onstitutionalviolation 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."''Waters'', 694 ''et seq.'', Stevens, J., dissenting.

''San Diego v. Roe''

In 2004, the Court issued a ''

per curiam In law, a ''per curiam'' decision (or opinion) is a ruling issued by an appellate court of multiple judges in which the decision rendered is made by the court (or at least, a majority of the court) acting collectively (and typically, though not ...

'' opinion in '' San Diego v. Roe'' that provided with another opportunity to discuss ''Connick''. It reversed the

Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...

and upheld the firing of a police officer who sold pornographic videos of himself, wearing a generic police uniform, on

eBay eBay Inc. ( ) is an American multinational e-commerce company based in San Jose, California, that facilitates consumer-to-consumer and business-to-consumer sales through its website. eBay was founded by Pierre Omidyar in 1995 and became ...

. 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. " en 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."''San Diego v. Roe'', , ''

''.

''Garcetti v. Ceballos''

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 ''

'', a

Los Angeles County Los Angeles County, officially the County of Los Angeles, and sometimes abbreviated as L.A. County, is the List of the most populous counties in the United States, most populous county in the United States and in the U.S. state of California, ...

prosecutor claimed the office of

Gil Garcetti Gilbert Salvador Iberri Garcetti (born August 5, 1941) is an American politician and lawyer. He served as Los Angeles County's 40th district attorney for two terms, from 1992 until November 7, 2000. He is the father of the 42nd mayor of the city ...

had retaliated against him with a series of adverse personnel moves after he questioned the veracity of a

search warrant A search warrant is a court order that a magistrate or judge issues to authorize law enforcement officers to conduct a search of a person, location, or vehicle for evidence of a crime and to confiscate any evidence they find. In most countries, ...

affidavit An ( ; Medieval Latin for "he has declared under oath") is a written statement voluntarily made by an ''affiant'' or '' deponent'' under an oath or affirmation which is administered by a person who is authorized to do so by law. Such a stateme ...

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 Samuel Anthony Alito Jr. ( ; born April 1, 1950) is an American lawyer and jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George W. Bush on October 31, 2005, and has serve ...

, 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 Anthony McLeod Kennedy (born July 23, 1936) is an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1988 until his retirement in 2018. He was nominated to the court in 1987 by Presid ...

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".''

'', , Kennedy, J. He cited language from his majority opinion in ''

Rosenberger v. University of Virginia ''Rosenberger v. Rector and Visitors of the University of Virginia'', 515 U.S. 819 (1995), was an opinion by the Supreme Court of the United States regarding whether a state university might, consistent with the First Amendment, withhold from stud ...

'' to the effect that the government has control over all speech it pays for.''

'', , 833, Kennedy, J., cited in ''Garcetti''.

David Souter David Hackett Souter ( ; born September 17, 1939) is an American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1990 until his retirement in 2009. Appointed by President George H. W. Bush to fill the seat ...

, 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.'' Schenck v. Pro-Choice Network of Western New York'', , was his other extreme. 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."''Garcetti'', Souter, J., dissenting.

Stephen Breyer Stephen Gerald Breyer ( ; born August 15, 1938) is a retired American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1994 until his retirement in 2022. He was nominated by President Bill Clinton, and rep ...

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.''Garcetti'', Breyer, J., dissenting.

Application to Fourth Amendment rights of public employees

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'',

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.. ''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..

Analysis and commentary

Two decades later, Strickler still disagreed with the Court. "This had been an easy case for the lower courts and, I think, rightfully so", he told the

Freedom Forum The Freedom Forum is the creator of the Newseum in Washington, D.C., which it sold to Johns Hopkins University in 2019. It is a nonpartisan 501 (c)(3) foundation that advances First Amendment freedoms through initiatives that include the Power Sh ...

. Justice Brennan had been right, he said, "that public employees are more at risk for expressing dissent." He also called its standard "not very workable", due to conflicting opinions from lower courts trying to apply it. Wessel characterized the speech as "petty bickering" and called the Court's ruling "a common-sense approach." Myers' questionnaire "was nearly 100 percent internal". Brennan's biographer David Marion sees the case as reaffirming two principles behind the justice's majority opinions in ''

New York Times Co. v. United States ''New York Times Co. v. United States'', 403 U.S. 713 (1971), was a landmark decision of the Supreme Court of the United States on the First Amendment right of Freedom of the Press. The ruling made it possible for ''The New York Times'' and ''The ...

'', the

Pentagon Papers The ''Pentagon Papers'', officially titled ''Report of the Office of the Secretary of Defense Vietnam Task Force'', is a United States Department of Defense history of the United States' political and military involvement in Vietnam from 1945 ...

case from 1971. That case had also involved, to some extent, the First Amendment rights of government workers in disputes at work. " is dissentis fully consistent with isgenerous view of the Court's powers ... and his commitment to the fullest possible degree of freedom of expression and access to information." Lewis Maltby, founder of the National Work Rights Institute, is highly critical of the decision. He castigated the public-concern requirement as " omethingthe Court just made up" in his book ''Can They Do That?''. "Justice White seems to have missed the

Catch-22 ''Catch-22'' is a satirical war novel by American author Joseph Heller. He began writing it in 1953; the novel was first published in 1961. Often cited as one of the most significant novels of the twentieth century, it uses a distinctive non- ...

quality of his rule", he wrote. "You don't need to question management when you agree with them, and you can't question management when you disagree with them because the very act of questioning them could hurt your working relationship." With exceptions like ''McPherson'', he believes this rule has cost too many public employees their jobs. "The sad reality is that freedom of speech is a myth where your employment is concerned, whether you work in the private or the public sector." When '' San Diego v. Roe'' was handed down, two decades later, Tony Mauro worried that its holding could potentially narrow the public-concern test. Writing at the First Amendment Center website, he noted that it suggested that it was not enough for public-employee speech to excite actual public interest to be adjudged worthy of First Amendment protection, but that such public interest must be in something legitimate. "Applying those subjective terms to Officer Roe's videotapes may have been an easy task," he wrote. "But they could prove perilous in future cases involving, for example, supermarket tabloids or gossipy Web sites."

Notes

References

External links

* {{US1stAmendment, speech, state=expanded United States Supreme Court cases 1983 in United States case law United States Free Speech Clause case law United States labor case law Government of New Orleans United States Supreme Court cases of the Burger Court