Connick v. Myers
Encyclopedia
Connick v. Myers, is a United States Supreme Court decision concerning the First Amendment
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, assistant district attorney (ADA). She had been fired
by her superior, District Attorney
Harry Connick Sr., 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
affirmed the verdict, Connick appealed to the Supreme Court.
The justices reversed the lower courts by a 5-4 margin. Justice Byron White
wrote for the majority
that most of the matters Myers' questionnaire had touched on were of personal, not public, concern and that the action had damaged the harmonious relations necessary for the efficient operation of the district attorney's office. William Brennan
argued in dissent
that the majority's application of precedent
was flawed. He argued that all the matters in the questionnaire were of public concern, and feared a chilling effect 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
15 years earlier in which the Court sided with the employer. 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
In the 1990s and 2000s, Waters v. Churchill
and Garcetti v. Ceballos
, the latter with some similarities to the circumstances of Connick, would further clarify it.
s in the New Orleans area and participated in programs sponsored by Connick's office. A judge had also persuaded her to take part in a probation
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
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.
, against Connick both personally and in his official capacity. She alleged violation of her First Amendment
rights and sought back pay, reinstatement and compensatory and punitive damages
. At first she sought a preliminary injunction
, 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
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
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 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, 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
, 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
for its allocation of school finances. Gordon quoted Thurgood Marshall
'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 Consol. School Dist., 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 Fifth Circuit
decision offered language that clarified this test: "[I]t is incumbent upon [the government] to clearly demonstrate that the employee's conduct substantially and materially interferes with the discharge of duties and responsibilities inherent in [public] employment."The decision upheld the firing of a clinical psychologist who had insisted on wearing a pin with a peace symbol 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. "[It was] not a statement of fact but the presentation and solicitation of ideas and opinions" and thus even more clearly protected.
"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
and punitive damages, since there was no evidence that Connick had shown reckless or wanton disregard for her civil rights
. Connick appealed to the Fifth Circuit
, which summarily affirmed in mid-1981.
. 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
and National Education Association
filed amicus curiae
briefs for Myers urging affirmance. Oral argument
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.
Wessel took issue with the idea that Myers' assignment could seriously be a matter of public interest. "[C]ertainly 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
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
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.
wrote for a majority that also included Chief Justice
Warren Burger, Lewis Powell, Sandra Day O'Connor
and William Rehnquist
. William Brennan
's dissent was signed by Harry Blackmun
, Thurgood Marshall
and John Paul Stevens
.
had been very emphatic in making that qualification, and reviewed the history of the law in that area.
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
: "[A policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." 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, 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. "[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.
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."
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.
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 esponsibilities, 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."
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."
"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."
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.
He found the majority's holding "flawed in three respects":
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."
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
. 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.
"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."
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."
rights of public employees in internal investigations.
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.
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 officeRankin, he noted, had not even argued that it was. and therefore was protected speech. 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."
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.
. 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. 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." 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."
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."
, 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". 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.
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.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." 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.
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. 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 constiutional.
. 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
, the Pentagon Papers
case from 1971. That case had also involved, to some extent, the First Amendment rights of government workers in disputes at work. "[His dissent] is fully consistent with [his] generous 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 "[something] the Court just made up" in his book Can They Do That?. "Justice White seems to have missed the Catch-22
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 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."
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
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, assistant district attorney (ADA). She had been fired
Termination of employment
-Involuntary termination:Involuntary termination is the employee's departure at the hands of the employer. There are two basic types of involuntary termination, known often as being "fired" and "laid off." To be fired, as opposed to being laid off, is generally thought of to be the employee's...
by her superior, District Attorney
District attorney
In many jurisdictions in the United States, a District Attorney is an elected or appointed government official who represents the government in the prosecution of criminal offenses. The district attorney is the highest officeholder in the jurisdiction's legal department and supervises a staff of...
Harry Connick Sr., 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
Jack Murphy Gordon
Jack Murphy Gordon was a United States federal judge.Born in Lake Charles, Louisiana, Gordon received a B.S. from Louisiana State University in 1951 and a J.D. from Louisiana State University Law School in 1954. He was in private practice in New Orleans, Louisiana from 1954 to 1971, also serving...
of the Eastern District of Louisiana
United States District Court for the Eastern District of Louisiana
The U.S. District Court for the Eastern District of Louisiana is a federal trial court based in New Orleans. Like all U.S...
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
United States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Fifth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Louisiana* Middle District of Louisiana...
affirmed the verdict, Connick appealed to the Supreme Court.
The justices reversed the lower courts by a 5-4 margin. Justice Byron White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
wrote for the majority
Majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision....
that most of the matters Myers' questionnaire had touched on were of personal, not public, concern and that the action had damaged the harmonious relations necessary for the efficient operation of the district attorney's office. William Brennan
William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
argued in dissent
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
that the majority's application of precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
was flawed. He argued that all the matters in the questionnaire were of public concern, and feared a chilling effect 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
Pickering v. Board of Education
Pickering v. Board of Education, 391 U.S. 563 , was a case in which the Supreme Court of the United States held that in the absence of proof of the teacher knowingly or recklessly making false statements the teacher had a right to speak on issues of public importance without being dismissed from...
15 years earlier in which the Court sided with the employer. 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
Rankin v. McPherson
Rankin v. McPherson, 483 U.S. 378 , is a major decision of the Supreme Court of the United States. It addressed matters of First Amendment concern, particularly whether the protection of the First Amendment extends to government employees who make extremely critical remarks about the President...
In the 1990s and 2000s, Waters v. Churchill
Waters v. Churchill
Waters v. Churchill, , is a 1994 decision of the United States Supreme Court concerning the First Amendment rights of public employees in the workplace...
and Garcetti v. Ceballos
Garcetti v. Ceballos
Garcetti v. Ceballos, 547 U.S. 410 , is a decision by the Supreme Court of the United States involving the 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 a promotion for criticizing the...
, the latter with some similarities to the circumstances of Connick, would further clarify it.
Underlying dispute
By 1980, Myers had been an assistant district attorney for more than five years. She had been an effective trial attorney who had turned down promotions to remain in the courtroom. She had also participated in programs at law schoolLaw school
A law school is an institution specializing in legal education.- Law degrees :- Canada :...
s in the 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
Probation literally means testing of behaviour or abilities. In a legal sense, an offender on probation is ordered to follow certain conditions set forth by the court, often under the supervision of a probation officer...
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
Memorandum
A memorandum is from the Latin verbal phrase memorandum est, the gerundive form of the verb memoro, "to mention, call to mind, recount, relate", which means "It must be remembered ..."...
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
Insomnia
Insomnia is most often defined by an individual's report of sleeping difficulties. While the term is sometimes used in sleep literature to describe a disorder demonstrated by polysomnographic evidence of disturbed sleep, insomnia is often defined as a positive response to either of two questions:...
. 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 suit in federal court for the Eastern District of LouisianaUnited States District Court for the Eastern District of Louisiana
The U.S. District Court for the Eastern District of Louisiana is a federal trial court based in New Orleans. Like all U.S...
, against Connick both personally and in his official capacity. She alleged violation of her First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
rights and sought back pay, reinstatement and compensatory and punitive damages
Punitive damages
Punitive damages or exemplary damages are damages intended 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
Preliminary injunction
A preliminary injunction, in equity, is an injunction entered by a court prior to a final determination of the merits of a legal case, in order to restrain a party from going forward with a course of conduct or compelling a party to continue with a course of conduct until the case has been decided...
, but Judge Jack Gordon
Jack Murphy Gordon
Jack Murphy Gordon was a United States federal judge.Born in Lake Charles, Louisiana, Gordon received a B.S. from Louisiana State University in 1951 and a J.D. from Louisiana State University Law School in 1954. He was in private practice in New Orleans, Louisiana from 1954 to 1971, also serving...
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
Insubordination is the act of willfully disobeying an authority. Refusing to perform an action that is unethical or illegal is not insubordination; neither is refusing to perform an action that is not within the scope of authority of the person issuing the order.Insubordination is typically a...
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
Job interview
A job interview is a process in which a potential employee is evaluated by an employer for prospective employment in their company, organization, or firm. During this process, the employer hopes to determine whether or not the applicant is suitable for the job.-Role:A job interview typically...
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 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, 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
Pickering v. Board of Education, 391 U.S. 563 , was a case in which the Supreme Court of the United States held that in the absence of proof of the teacher knowingly or recklessly making false statements the teacher had a right to speak on issues of public importance without being dismissed from...
, 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 (education)
In education in the United States, a superintendent is an individual who has executive oversight and administration rights, usually within an educational entity or organization....
for its allocation of school finances. Gordon quoted Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
'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 Consol. School Dist., 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 Fifth Circuit
United States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Fifth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Louisiana* Middle District of Louisiana...
decision offered language that clarified this test: "[I]t is incumbent upon [the government] to clearly demonstrate that the employee's conduct substantially and materially interferes with the discharge of duties and responsibilities inherent in [public] employment."The decision upheld the firing of a clinical psychologist who had insisted on wearing a pin with a peace symbol 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
United States Court of Appeals for the Seventh Circuit
The United States Court of Appeals for the Seventh Circuit is a federal court with appellate jurisdiction over the courts in the following districts:* Central District of Illinois* Northern District of Illinois...
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. "[It was] not a statement of fact but the presentation and solicitation of ideas and opinions" and thus even more clearly protected.
"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
Declaratory relief
Declaratory relief is a judge's determination of the parties' rights under a contract or a statute, often requested in a lawsuit over a contract. In theory, an early resolution of legal rights will resolve some or all of the other issues in the matter....
and punitive damages, since there was no evidence that Connick had shown reckless or wanton disregard for her civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
. Connick appealed to the Fifth Circuit
United States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Fifth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Louisiana* Middle District of Louisiana...
, which summarily affirmed in mid-1981.
Before the Court
Connick petitioned the Supreme Court for certiorariCertiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
. 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
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "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." It works through litigation, legislation, and...
and National Education Association
National Education Association
The National Education Association is the largest professional organization and largest labor union in the United States, representing public school teachers and other support personnel, faculty and staffers at colleges and universities, retired educators, and college students preparing to become...
filed amicus curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
briefs for Myers urging affirmance. Oral argument
Oral argument
Oral arguments are spoken presentations to a judge or appellate court by a lawyer of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute...
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.
Wessel took issue with the idea that Myers' assignment could seriously be a matter of public interest. "[C]ertainly 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
Civil service
The term civil service has two distinct meanings:* A branch of governmental service in which individuals are employed on the basis of professional merit as proven by competitive examinations....
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 Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
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 Byron WhiteByron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
wrote for a majority that also included Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Warren Burger, Lewis Powell, Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
and William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
. William Brennan
William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
's dissent was signed by Harry Blackmun
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
, Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
and John Paul Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
.
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 PickeringPickering v. Board of Education
Pickering v. Board of Education, 391 U.S. 563 , was a case in which the Supreme Court of the United States held that in the absence of proof of the teacher knowingly or recklessly making false statements the teacher had a right to speak on issues of public importance without being dismissed from...
had been very emphatic in making that qualification, and reviewed the history of the law in that area.
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, Massachusetts
New Bedford is a city in Bristol County, Massachusetts, United States, located south of Boston, southeast of Providence, Rhode Island, and about east of Fall River. As of the 2010 census, the city had a total population of 95,072, making it the sixth-largest city in Massachusetts...
as a justice of the Massachusetts Supreme Judicial Court
Massachusetts Supreme Judicial Court
The Massachusetts Supreme Judicial Court is the highest court in the Commonwealth of Massachusetts. The SJC has the distinction of being the oldest continuously functioning appellate court in the Western Hemisphere.-History:...
: "[A policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." Throughout the early 20th century the Supreme Court had held similarly. Around the beginning of the McCarthy era
McCarthyism
McCarthyism is the practice of making accusations of disloyalty, subversion, or treason without proper regard for evidence. The term has its origins in the period in the United States known as the Second Red Scare, lasting roughly from the late 1940s to the late 1950s and characterized by...
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
Communist Party USA
The Communist Party USA is a Marxist political party in the United States, established in 1919. It has a long, complex history that is closely related to the histories of similar communist parties worldwide and the U.S. labor movement....
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, 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
Tom C. Clark
Thomas Campbell Clark was United States Attorney General from 1945 to 1949 and an Associate Justice of the Supreme Court of the United States .- Early life and career :...
'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. "[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.
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
Status quo
Statu quo, a commonly used form of the original Latin "statu quo" – literally "the state in which" – is a Latin term meaning the current or existing state of affairs. To maintain the status quo is to keep the things the way they presently are...
." 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
Cause célèbre
A is an issue or incident arousing widespread controversy, outside campaigning and heated public debate. The term is particularly used in connection with celebrated legal cases. It is a French phrase in common English use...
... 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."
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.
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 esponsibilities, 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."
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."
"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
Pyrrhic victory
A Pyrrhic victory is a victory with such a devastating cost to the victor that it carries the implication that another such victory will ultimately cause defeat.-Origin:...
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."
Dissent
"It is hornbookHornbook (law)
In United States legal education, hornbooks are one-volume legal treatises, written primarily for law students on subjects typically covered by law school courses.Hornbooks summarize and explain the law in a specific area...
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.
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.
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."
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
Tinker v. Des Moines Independent Community School District, was a decision by the United States Supreme Court that defined the constitutional rights of students in U.S. public schools...
, 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
Vietnam War
The Vietnam War was a Cold War-era military conflict that occurred in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. This war followed the First Indochina War and was fought between North Vietnam, supported by its communist allies, and the government of...
. 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.
"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 returned to 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 AmendmentFourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
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 respondentDefendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
in Rankin v. McPherson
Rankin v. McPherson
Rankin v. McPherson, 483 U.S. 378 , is a major decision of the Supreme Court of the United States. It addressed matters of First Amendment concern, particularly whether the protection of the First Amendment extends to government employees who make extremely critical remarks about the President...
was a Harris County, Texas
Harris County, Texas
As of the 2010 Census, the population of the county was 4,092,459, White Americans made up 56.6% of Harris County's population; non-Hispanic whites represented 33.0% of the population. Black Americans made up 18.9% of the population. Native Americans made up 0.7% of Harris County's population...
, deputy constable
Texas Constable
The Texas constable is enshrined in the Texas Constitution of 1876 , which provides for the election of a constable in each precinct of a county, and counties may have between one and eight precincts each depending on their population. The term of office for Texas constables is four years...
, newly hired and on probationary status
Probation (workplace)
In a workplace setting, probation is a status given to new employees of a company or business.It is widely termed as Probation Period of an employee...
in 1981, when she heard about the assassination attempt
Reagan assassination attempt
The Reagan assassination attempt occurred on Monday, March 30, 1981, just 69 days into the presidency of Ronald Reagan. While leaving a speaking engagement at the Washington Hilton Hotel in Washington, D.C., President Reagan and three others were shot and wounded by John Hinckley, Jr...
on President Ronald Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
. 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.
A 5-4 majority found that her First Amendment rights had been violated. Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
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. Lewis Powell, a member of the Connick majority, wrote in a separate concurrence
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
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."
Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
, 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
Law enforcement agency
In North American English, a law enforcement agency is a government agency responsible for the enforcement of the laws.Outside North America, such organizations are called police services. In North America, some of these services are called police while others have other names In North American...
agency.
Waters v. Churchill
The next case to consider the First Amendment rights of public employees was Waters v. ChurchillWaters v. Churchill
Waters v. Churchill, , is a 1994 decision of the United States Supreme Court concerning the First Amendment rights of public employees in the workplace...
. In that 1994 case, from the Seventh Circuit
United States Court of Appeals for the Seventh Circuit
The United States Court of Appeals for the Seventh Circuit is a federal court with appellate jurisdiction over the courts in the following districts:* Central District of Illinois* Northern District of Illinois...
, 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
Cross-training (business)
Cross-training in business operations involves training employees to engage in quality control measures. Employees are trained in tangent job functions to increase oversight in ways that are impossible through management interactions with workers alone....
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
Plurality opinion
A plurality opinion is the opinion from a group of justices, often in an appellate court, in which no single opinion received the support of a majority of the court. The plurality opinion did not receive the support of more than half the justices, but received more support than any other...
, 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. 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." John Paul Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
, writing for himself and fellow dissenter Harry Blackmun
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
, 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."
San Diego v. Roe
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 CircuitUnited States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
and upheld the firing of a police officer who sold pornographic videos of himself, wearing a generic police uniform, on eBay
EBay
eBay Inc. is an American internet consumer-to-consumer corporation that manages eBay.com, an online auction and shopping website in which people and businesses buy and sell a broad variety of goods and services worldwide...
. 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."
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 Garcetti v. CeballosGarcetti v. Ceballos
Garcetti v. Ceballos, 547 U.S. 410 , is a decision by the Supreme Court of the United States involving the 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 a promotion for criticizing the...
, a Los Angeles County
Los Angeles County, California
Los Angeles County is a county in the U.S. state of California. As of 2010 U.S. Census, the county had a population of 9,818,605, making it the most populous county in the United States. Los Angeles County alone is more populous than 42 individual U.S. states...
prosecutor claimed the office of Gil Garcetti
Gil Garcetti
Gilbert Salvadore Iberri "Gil" Garcetti is an American politician. He served as Los Angeles County's 40th District Attorney for two terms, from 1992 until November 7, 2000.-Background:...
had retaliated against him with a series of adverse personnel moves after he questioned the veracity of a search warrant
Search warrant
A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....
affidavit
Affidavit
An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public...
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 Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
, 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 Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
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". He cited language from his majority opinion in Rosenberger v. University of Virginia
Rosenberger v. University of Virginia
Rosenberger v. Rector and Visitors of the University of Virginia, , was an opinion by the Supreme Court of the United States regarding whether a state university might, consistently with the First Amendment, withhold from student religious publications funding provided to similar secular student...
to the effect that the government has control over all speech it pays for.
David Souter
David Souter
David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...
, 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
Schenck v. Pro-Choice Network of Western New York
Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 , was a case heard before the United States Supreme Court. It ruled in an 8-1 decision that speech-free "buffer zones" around abortion clinics were constitutional...
, , 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." Stephen Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
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.
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 AmendmentFourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
rights during non-criminal administrative investigations. In O'Connor v. Ortega
O'Connor v. Ortega
O'Connor v. Ortega, , is a United States Supreme Court decision on the Fourth Amendment rights of government employees with regard to administrative searches in the workplace, during investigations by supervisors for violations of employee policy rather than by law enforcement for criminal offenses...
, Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
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
Reasonable suspicion
Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch' ";...
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
Ontario v. Quon
Ontario v. Quon, sometimes cited as City of Ontario v. Quon, 560 U.S. ___ , is a United States Supreme Court case concerning the extent to which the right to privacy applies to electronic communications in a government workplace...
considered the same issue in holding unanimously that an audit of police pagers which revealed sexually explicit personal messages was legitimately work-related and constiutional.
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 ForumFreedom Forum
The Freedom Forum was created in 1991 under the direction of Al Neuharth, former publisher of USA Today newspaper. Funding was provided by a foundation started by publisher Frank E. Gannett in 1935, called the Gannett Foundation...
. 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
New York Times Co. v. United States, 403 U.S. 713 , was a United States Supreme Court per curiam decision. The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censure.President Richard Nixon had...
, the Pentagon Papers
Pentagon Papers
The Pentagon Papers, officially titled United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense, is a United States Department of Defense history of the United States' political-military involvement in Vietnam from 1945 to 1967...
case from 1971. That case had also involved, to some extent, the First Amendment rights of government workers in disputes at work. "[His dissent] is fully consistent with [his] generous 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 "[something] the Court just made up" in his book Can They Do That?. "Justice White seems to have missed the Catch-22
Catch-22 (logic)
A Catch-22, coined by Joseph Heller in his novel Catch-22, is a logical paradox arising from a situation in which an individual needs something that can only be acquired with an action that will lead him to that very situation he is already in; therefore, the acquisition of this thing becomes...
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 Roe was handed down, two decades later, Tony Mauro
Tony Mauro
Tony Mauro is an American journalist and author who has covered the United States Supreme Court since 1979, most recently for The National Law Journal and other ALM publications....
worried that its holding could potentially narrow the public-concern test. Writing at the First Amendment Center
First Amendment Center
The First Amendment Center is an advocacy group in the United States that works to preserve and protect First Amendment freedoms through information and education. The Center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of...
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."
See also
- List of United States Supreme Court cases by the Burger Court
- List of United States Supreme Court cases, volume 461
- List of United States Supreme Court cases involving the First Amendment