Respondent, a data-entry employee in a county Constable's
office, was discharged for remarking to a coworker, after hearing
of an attempt on the President's life, "if they go for him again, I
hope they get him." Respondent was not a commissioned peace
officer, did not wear a uniform, was not authorized to make arrests
or permitted to carry a gun, and was not brought by virtue of her
job into contact with the public. Her duties were purely clerical,
were limited solely to the civil process function of the
Constable's office, and did not involve her in the office's minimal
law enforcement activity. Her statement was made during a private
conversation in a room not readily accessible to the public. The
Constable fired petitioner because of the statement. She then
brought suit in the Federal District Court under 42 U.S.C. § 1983,
alleging that her discharge violated her First Amendment right to
free speech under color of state law. The court upheld the
discharge, but the Court of Appeals vacated and remanded, whereupon
the District Court again ruled against respondent. However, the
Court of Appeals reversed and remanded for determination of an
appropriate remedy, holding that respondent's remark had addressed
a matter of public concern, and that the governmental interest in
maintaining efficiency and discipline in the workplace did not
outweigh society's First Amendment interest in protecting
respondent's speech.
Held: Respondent's discharge violated her First
Amendment right to freedom of expression. Pp.
483 U. S.
383-392.
(a) The content, form, and context of respondent's statement, as
revealed by the record, support the threshold conclusion that the
statement constitutes speech on a matter of public concern. The
statement was made in the course of a conversation addressing the
policies of the President's administration, and came on the heels
of a news bulletin regarding a matter of heightened public
attention: an attempt on the President's life. Although a statement
amounting to a threat to kill the President would not be protected
by the First Amendment, the lower courts correctly concluded that
respondent's remark could not properly be criminalized. Moreover,
the inappropriate or controversial character of a statement is
irrelevant to the question whether it deals with a matter of public
concern. Pp.
483 U. S.
384-387.
Page 483 U. S. 379
(b) Petitioners have not met their burden of demonstrating a
state interest justifying respondent's discharge that outweighs her
First Amendment rights, given the functions of the Constable's
office, respondent's position therein, and the nature of her
statement. Although that statement was made at the workplace, there
is no evidence that it interfered with the efficient functioning of
the office. Nor was there any danger that respondent had
discredited the office by making the statement in public. Her
discharge was not based on any assessment that her remark
demonstrated a character trait that made her unfit to perform her
work, which involved no confidential or policymaking role.
Furthermore, there was no danger that the statement would have a
detrimental impact on her working relationship with the Constable,
since their employment-related interaction was apparently
negligible. Pp.
483 U. S.
388-392.
786 F.2d 1233, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which
BRENNAN, BLACKMUN, POWELL, and STEVENS, JJ., joined. POWELL, J.,
filed a concurring opinion,
post p.
483 U. S. 392.
SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J.,
and WHITE and O'CONNOR, JJ., joined,
post p.
483 U. S.
394.
JUSTICE MARSHALL delivered the opinion of the Court.
The issue in this case is whether a clerical employee in a
county Constable's office was properly discharged for rmarking,
Page 483 U. S. 380
after hearing of an attempt on the life of the President, "If
they go for him again, I hope they get him."
I
On January 12, 1981, respondent Ardith McPherson was appointed a
deputy in the office of the Constable of Harris County, Texas. The
Constable is an elected official who functions as a law enforcement
officer. [
Footnote 1] At the
time of her appointment, McPherson, a black woman, was 19 years old
and had attended college for a year, studying secretarial science.
Her appointment was conditional for a 90-day probationary
period.
Although McPherson's title was "deputy constable," this was the
case only because all employees of the Constable's office,
regardless of job function, were deputy constables. Tr. of Oral
Arg. 5. She was not a commissioned peace officer, did not wear a
uniform, and was not authorized to make arrests or permitted to
carry a gun. [
Footnote 2]
McPherson's duties were purely clerical. Her work station was a
desk at which there was no telephone, in a room to which the public
did not have ready access. Her job was to type data from court
papers
Page 483 U. S. 381
into a computer that maintained an automated record of the
status of civil process in the county. Her training consisted of
two days of instruction in the operation of her computer
terminal.
On March 30, 1981, McPherson and some fellow employees heard on
an office radio that there had been an attempt to assassinate the
President of the United States. Upon hearing that report, McPherson
engaged a coworker, Lawrence Jackson, who was apparently her
boyfriend, in a brief conversation which, according to McPherson's
uncontroverted testimony, went as follows:
"Q: What did you say?"
"A: I said I felt that that would happen sooner or later."
"Q: Okay. And what did Lawrence say?"
"A: Lawrence said, yeah, agreeing with me."
"Q: Okay. Now, when you -- after Lawrence spoke, then what was
your next comment?"
"A: Well, we were talking -- it's a wonder why they did that. I
felt like it would be a black person that did that, because I feel
like most of my kind is on welfare and CETA, and they use medicaid,
and at the time, I was thinking that's what it was."
". . . But then after I said that, and then Lawrence said, yeah,
he's cutting back medicaid and food stamps. And I said, yeah,
welfare and CETA. I said, shoot, if they go for him again, I hope
they get him. [
Footnote 3]"
McPherson's last remark was overheard by another Deputy
Constable, who, unbeknownst to McPherson, was in the room at the
time. The remark was reported to Constable Rankin,
Page 483 U. S. 382
who summoned McPherson. McPherson readily admitted that she had
made the statement, but testified that she told Rankin, upon being
asked if she made the statement, "Yes, but I didn't mean anything
by it." App. 38. [
Footnote 4]
After their discussion, Rankin fired McPherson. [
Footnote 5]
McPherson brought suit in the United States District Court for
the Southern District of Texas under 42 U.S.C. § 1983, alleging
that petitioner Rankin, in discharging her, had violated her
constitutional rights under color of state law. She sought
reinstatement, backpay, costs and fees, and other equitable relief.
The District Court held a hearing, and then granted summary
judgment to Constable Rankin, holding that McPherson's speech had
been unprotected, and that her discharge had therefore been proper.
Civ.Action No. H-81-1442 (Apr. 15, 1983). [
Footnote 6] The Court of Appeals for the Fifth Circuit
vacated and remanded for trial, 736 F.2d 175 (1984), on the ground
that substantial issues of material fact regarding the context in
which the statement
Page 483 U. S. 383
had been made precluded the entry of summary judgment.
Id. at 180.
On remand, the District Court held another hearing and ruled
once again, this time from the bench, that the statements were not
protected speech. App. 120. Again, the Court of Appeals reversed.
786 F.2d 1233 (1986). It held that McPherson's remark had addressed
a matter of public concern, requiring that society's interest in
McPherson's freedom of speech be weighed against her employer's
interest in maintaining efficiency and discipline in the workplace.
Id. at 1236. Performing that balancing, the Court of
Appeals concluded that the Government's interest did not outweigh
the First Amendment interest in protecting McPherson's speech.
Given the nature of McPherson's job and the fact that she was not a
law enforcement officer, was not brought by virtue of her job into
contact with the public, and did not have access to sensitive
information, the Court of Appeals deemed her "duties . . . so
utterly ministerial and her potential for undermining the office's
mission so trivial" as to forbid her dismissal for expression of
her political opinions.
Id. at 1239. "However
ill-considered Ardith McPherson's opinion was," the Court of
Appeals concluded, "it did not make her unfit" for the job she held
in Constable Rankin's office.
Ibid. The Court of Appeals
remanded the case for determination of an appropriate remedy.
We granted certiorari, 479 U.S. 913 (1986), and now affirm.
II
It is clearly established that a State may not discharge an
employee on a basis that infringes that employee's constitutionally
protected interest in freedom of speech.
Perry v.
Sindermann, 408 U. S. 593,
408 U. S. 597
(1972). Even though McPherson was merely a probationary employee,
and even if she could have been discharged for any reason or for no
reason at all, she may nonetheless be entitled to reinstatement if
she was discharged for exercising her constitutional right to
Page 483 U. S. 384
freedom of expression.
See Mt. Healthy City Board of
Education v. Doyle, 429 U. S. 274,
429 U. S.
284-285 (1977);
Perry v. Sindermann, supra, at
408 U. S.
597-598.
The determination whether a public employer has properly
discharged an employee for engaging in speech requires
"a balance between the interests of the [employee], as a
citizen, in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the efficiency
of the public services it performs through its employees."
Pickering v. Board of Education, 391 U.
S. 563,
391 U. S. 568
(1968);
Connick v. Myers, 461 U.
S. 138,
461 U. S. 140
(1983). This balancing is necessary in order to accommodate the
dual role of the public employer as a provider of public services
and as a government entity operating under the constraints of the
First Amendment. On the one hand, public employers are employers,
concerned with the efficient function of their operations; review
of every personnel decision made by a public employer could, in the
long run, hamper the performance of public functions. On the other
hand, "the threat of dismissal from public employment is . . . a
potent means of inhibiting speech."
Pickering, supra, at
391 U. S. 574.
Vigilance is necessary to ensure that public employers do not use
authority over employees to silence discourse, not because it
hampers public functions but simply because superiors disagree with
the content of employees' speech.
A
The threshold question in applying this balancing test is
whether McPherson's speech may be "fairly characterized as
constituting speech on a matter of public concern."
Connick, 461 U.S. at
461 U. S. 146.
[
Footnote 7]
"Whether an employee's speech
Page 483 U. S. 385
addresses a matter of public concern must be determined by the
content, form, and context of a given statement, as revealed by the
whole record."
Id. at
461 U. S.
147-148. The District Court apparently found that
McPherson's speech did not address a matter of public concern.
[
Footnote 8] The Court of
Appeals rejected this conclusion, finding that "the life and death
of the President are obviously matters of public concern." 786 F.2d
at 1236. Our view of these determinations of the courts
Page 483 U. S. 386
below is limited in this context by our constitutional
obligation to assure that the record supports this conclusion:
"'[W]e are compelled to examine for ourselves the statements in
issue and the circumstances under which they [were] made to see
whether or not they . . . are of a character which the principles
of the First Amendment, as adopted by the Due Process Clause of the
Fourteenth Amendment, protect.'"
Connick, supra, at
461 U. S. 150,
n. 10, quoting
Pennekamp v. Florida, 328 U.
S. 331,
328 U. S. 335
(1946) (footnote omitted). [
Footnote 9]
Considering the statement in context, as
Connick
requires, discloses that it plainly dealt with a matter of public
concern. The statement was made in the course of a conversation
addressing the policies of the President's administration.
[
Footnote 10] It came on the
heels of a news bulletin regarding what is certainly a matter of
heightened public attention: an attempt on the life of the
President. [
Footnote 11]
While a statement
Page 483 U. S. 387
that amounted to a threat to kill the President would not be
protected by the First Amendment, the District Court concluded, and
we agree, that McPherson's statement did not amount to a threat
punishable under 18 U.S.C. § 871(a) or 18 U.S.C. § 2385, or,
indeed, that could properly be criminalized at all.
See
786 F.2d at 1235 ("A state would . . . face considerable
constitutional obstacles if it sought to criminalize the words that
were uttered by McPherson on the day the President was shot");
see also Brief for United States as
Amicus Curiae
8 ("[W]e do not think that respondent's remark could be
criminalized");
cf. Watts v. United States, 394 U.
S. 705 (1969) (per curiam). [
Footnote 12] The inappropriate or controversial
character of a statement is irrelevant to the question whether it
deals with a matter of public concern.
"[D]ebate on public issues should be uninhibited, robust, and
wide-open, and . . . may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public
officials."
New York Times Co. v. Sullivan, 376 U.
S. 254,
376 U. S. 270
(1964);
see also Bond v. Floyd, 385 U.
S. 116,
385 U. S. 136
(1966):
"Just as erroneous statements must be protected to give freedom
of expression the breathing space it needs to survive, so
statements criticizing public policy and the implementation of it
must be similarly protected. "
Page 483 U. S. 388
B
Because McPherson's statement addressed a matter of public
concern,
Pickering next requires that we balance
McPherson's interest in making her statement against "the interest
of the State, as an employer, in promoting the efficiency of the
public services it performs through its employees." 391 U.S. at
391 U. S. 568.
[
Footnote 13] The State
bears a burden of justifying the discharge on legitimate grounds.
Connick, 461 U.S. at
461 U. S.
150.
In performing the balancing, the statement will not be
considered in a vacuum; the manner, time, and place of the
employee's expression are relevant, as is the context in which the
dispute arose.
See id. at
461 U. S.
152-153;
Givhan v. Western Line Consolidated School
Dist., 439 U. S. 410,
439 U. S. 415,
n. 4 (1979). We have previously recognized as pertinent
considerations whether the statement impairs discipline by
superiors or harmony among coworkers, has a detrimental impact on
close working relationships for which personal loyalty and
confidence are necessary, or impedes the performance of the
speaker's duties or interferes with the regular operation of the
enterprise.
Pickering, 391 U.S. at
391 U. S.
570-573.
These considerations, and indeed the very nature of the
balancing test, make apparent that the state interest element of
the test focuses on the effective functioning of the public
employer's enterprise. Interference with work, personnel
relationships, or the speaker's job performance can detract from
the public employer's function; avoiding such interference can be a
strong state interest. From this perspective, however, petitioners
fail to demonstrate a state interest that outweighs McPherson's
First Amendment rights. While
Page 483 U. S. 389
McPherson's statement was made at the workplace, there is no
evidence that it interfered with the efficient functioning of the
office. The Constable was evidently not afraid that McPherson had
disturbed or interrupted other employees -- he did not inquire to
whom respondent had made the remark, and testified that he "was not
concerned who she had made it to," Tr. 42. In fact, Constable
Rankin testified that the possibility of interference with the
functions of the Constable's office had not been a consideration in
his discharge of respondent, and that he did not even inquire
whether the remark had disrupted the work of the office. [
Footnote 14]
Nor was there any danger that McPherson had discredited the
office by making her statement in public. McPherson's speech took
place in an area to which there was ordinarily no public access;
her remark was evidently made in a private conversation with
another employee. There is no suggestion that any member of the
general public was present or heard McPherson's statement. Nor is
there any evidence that employees other than Jackson who worked in
the room even heard the remark. Not only was McPherson's discharge
unrelated to the functioning of the office, it was not based on any
assessment by the Constable that the remark demonstrated a
character trait that made respondent unfit to perform her work.
[
Footnote 15]
Page 483 U. S. 390
While the facts underlying Rankin's discharge of McPherson are,
despite extensive proceedings in the District Court, still somewhat
unclear, [
Footnote 16] it is
undisputed that he fired McPherson based on the content of her
speech. Evidently because McPherson had made the statement, and
because the Constable believed that she "meant it," he decided that
she was not a suitable employee to have in a law enforcement
agency. But in weighing the State's interest in discharging an
employee based on any claim that the content of a statement made by
the employee somehow undermines the mission of the public employer,
some attention must be paid to the responsibilities of the employee
within the agency. The burden of caution employees bear with
respect to the words they speak will vary with the extent of
authority and public accountability the employee's role entails.
Where, as here, an employee serves no confidential, policymaking,
or public
Page 483 U. S. 391
contact role, the danger to the agency's successful functioning
from that employee's private speech is minimal. We cannot believe
that every employee in Constable Rankin's office, whether computer
operator, electrician, or file clerk, is equally required, on pain
of discharge, to avoid any statement susceptible of being
interpreted by the Constable as an indication that the employee may
be unworthy of employment in his law enforcement agency. [
Footnote 17] At some point, such
concerns are so removed from the effective functioning of the
public employer that they cannot prevail over the free speech
rights of the public employee. [
Footnote 18]
Page 483 U. S. 392
This is such a case. McPherson's employment-related interaction
with the Constable was apparently negligible. Her duties were
purely clerical, and were limited solely to the civil process
function of the Constable's office. There is no indication that she
would ever be in a position to further -- or indeed to have any
involvement with -- the minimal law enforcement activity engaged in
by the Constable's office. Given the function of the agency,
McPherson's position in the office, and the nature of her
statement, we are not persuaded that Rankin's interest in
discharging her outweighed her rights under the First
Amendment.
Because we agree with the Court of Appeals that McPherson's
discharge was improper, the judgment of the Court of Appeals is
Affirmed.
[
Footnote 1]
While the Constable's office is a law enforcement agency,
Constable Rankin testified that other law enforcement departments
were charged with the day-to-day enforcement of criminal laws in
the county, Tr. (Jan. 21, 1985), pp. 11, 27 (hereinafter Tr.), and
that more than 80% of the budget of his office was devoted to
service of civil process, service of process in juvenile
delinquency cases, and execution of mental health warrants.
Id. at 15-17. The involvement of his office in criminal
cases, he testified, was in large part limited to warrants in bad
check cases.
Id. at 24 ("Most of our percentage is with
civil papers and hot check warrants").
[
Footnote 2]
In order to serve as a commissioned peace officer, as the Court
of Appeals noted, a deputy would have to undergo a background
check, a psychological examination, and over 300 hours of training
in law enforcement. 786 F.2d 1233, 1237 (CA5 1986). Constable
Rankin testified that, while his office had on occasion been asked
to guard various dignitaries visiting Houston, Tr. 24, a deputy who
was not a commissioned peace officer would never be assigned to
such duty,
id. at 30. Nor would such a deputy even be
assigned to serve process.
Id. at 32.
[
Footnote 3]
Tr. 73. In its first order in this case, the District Court
found that McPherson's statement had been, "
I
hope if they go for him again, they get him.'" Civ. Action No.
H-81-1442 (Apr. 15, 1983). In its second decision, the District
Court made no explicit finding as to what was said. McPherson's
testimony, as reproduced in the text, is only slightly different
from the District Court's version, and the distinction is not
significant.
[
Footnote 4]
Rankin testified that, when he asked McPherson whether she meant
the remark, she replied, "I sure do." App. 38. In neither of its
opinions in this case did the District Court make an explicit
finding regarding which version of this conflicting testimony it
found credible.
See also 736 F.2d 175, 177, and n. 3 (CA5
1984).
We note that the question whether McPherson "meant" the
statement is ambiguous. Assuming that McPherson told Rankin she
"meant it," McPherson might think she had said that she "meant"
that she disliked the President and would not mind if he were dead,
while Rankin might believe that McPherson "meant" to indicate
approval of, or in any event hope for, political assassination.
This ambiguity makes evident the need for carefully conducted
hearings and precise and complete findings of fact.
[
Footnote 5]
McPherson evidently returned to the office the next day seeking
an interview with the Constable, but Rankin refused to see her.
[
Footnote 6]
Because the District Court entered summary judgment after the
first hearing, we must conclude that it did not, in its April 15
ruling, resolve any disputed issues of material fact. We have
considered the District Court's findings of fact made after this
hearing only to the extent they address what appear to be
undisputed factual issues.
[
Footnote 7]
Even where a public employee's speech does not touch upon a
matter of public concern, that speech is not "totally beyond the
protection of the First Amendment,"
Connick v. Myers, 461
U.S. at
461 U. S. 147,
but,
"absent the most unusual circumstances, a federal court is not
the appropriate forum in which to review the wisdom of a personnel
decision taken by a public agency allegedly in reaction to the
employee's behavior."
Ibid.
[
Footnote 8]
The District Court, after its second hearing in this case,
delivered its opinion from the bench and did not explicitly address
the elements of the required balancing test. It did, however, state
that the case was
"not like the
Myers case, where Ms. Myers was trying to
comment upon the internal affairs of the office, or matters upon
public concern. I don't think it is a matter of public concern to
approve even more to [
sic] the second attempt at
assassination."
App. 119.
The dissent accuses us of distorting and beclouding the record,
evidently because we have failed to accord adequate deference to
the purported "findings" of the District Court.
Post at
483 U. S. 396.
We find the District Court's "findings" from the bench
significantly more ambiguous than does the dissent:
"Then I suppose we get down to the serious question, what did
she 'mean.' I don't believe she meant nothing, as she said here
today, and I don't believe that those words were mere political
hyperbole. They were something more than political hyperbole. They
expressed such dislike of a high public government official as to
be violent words, in context. This is not the situation where one
makes an idle threat to kill someone for not picking them up on
time, or not picking up their clothes. It was more than that."
"It's not like the
Myers case, where Ms. Myers was
trying to comment upon the internal affairs of the office, or
matters upon public concern. I don't think it is a matter of public
concern to [
sic] approve even more to the second attempt
at assassination."
App. 119. The District Court's sole affirmative "finding" here,
that McPherson's statement constituted "violent words, in context,"
is unintelligible in First Amendment terms. Even assuming that the
District Court can be viewed to have made any findings of fact on
the public concern issue, it is unclear to what extent that issue
presents a question of fact at all. In addition, the dissent fails
to acknowledge that any factual findings subsumed in the "public
concern" determination are subject to constitutional fact review.
See also 786 F.2d at 1237.
[
Footnote 9]
See also Bose Corp. v. Consumers Union of United States,
Inc., 466 U. S. 485,
466 U. S. 499
(1984) ("[I]n cases raising First Amendment issues, we have
repeatedly held that an appellate court has an obligation to
make an independent examination of the whole record' in order
to make sure that `the judgment does not constitute a forbidden
intrusion on the field of free expression,'" quoting New York
Times Co. v. Sullivan, 376 U. S. 254,
376 U. S.
284-286 (1964)). The ultimate issue -- whether the
speech is protected -- is a question of law. Connick,
supra, at 461 U. S. 148,
n. 7.
[
Footnote 10]
McPherson actually made the statement at issue not once, but
twice, and only in the first instance did she make the statement in
the context of a discussion of the President's policies. McPherson
repeated the statement to Constable Rankin at his request. We do
not consider the second statement independently of the first,
however. Having been required by the Constable to repeat her
statement, McPherson might well have been deemed insubordinate had
she refused. A public employer may not divorce a statement made by
an employee from its context by requiring the employee to repeat
the statement, and use that statement standing alone as the basis
for a discharge. Such a tactic could in some cases merely give the
employee the choice of being fired for failing to follow orders or
for making a statement which, out of context, may not warrant the
same level of First Amendment protection it merited when originally
made.
[
Footnote 11]
The private nature of the statement does not, contrary to the
suggestion of the United States, Brief for United States as
Amicus Curiae 18, vitiate the status of the statement as
addressing a matter of public concern.
See Givhan v. Western
Line Consolidated School Dist., 439 U.
S. 410,
439 U. S.
414-416 (1979).
[
Footnote 12]
Constable Rankin was evidently unsure of this; he testified that
he called the Secret Service to report the incident and suggest
that they investigate McPherson. Tr. 44. McPherson testified that
the Secret Service did, in fact, come to her home:
"Oh, they told me that they thought it was a prank call, but . .
. they have to investigate any call that they get."
". . . When they left, they told my mama and me that they were
sorry. They said that they knew it was a prank call, they just have
to come out and investigate. They said that's the procedure."
Id. at 81-82.
[
Footnote 13]
We agree with JUSTICE POWELL that a purely private statement on
a matter of public concern will rarely, if ever, justify discharge
of a public employee.
Post at
483 U. S. 393.
To the extent petitioners' claim that McPherson's speech rendered
her an unsuitable employee for a law enforcement agency implicates
a serious state interest and necessitates the application of the
balancing element of the
Pickering analysis, we proceed to
that task.
[
Footnote 14]
He testified: "I did not base my action on whether the work was
interrupted or not. I based my action on a statement that was made
to me direct." Tr. 45.
[
Footnote 15]
In response to a question from the bench, counsel at oral
argument before this Court expressly denied that this was the
motive for the Constable's discharge of McPherson:
"QUESTION: . . . [S]uppose when she was called in by the
constable and asked whether she had said that, she said, 'Yes, I
said it.'"
"MR. LEE [counsel for petitioners]: She was, Your Honor. She was
called in by the constable."
"QUESTION: I know. Now, suppose she had said, 'Yeah, I said it,
but, you know, I didn't really mean anything by it.'"
"MR. LEE: Yes, sir."
"QUESTION: Do we know whether she would have been fired? I mean,
conceivably you might fire her anyway. I mean, he might have said,
'Well, you know, you shouldn't talk like that, whether you mean it
or not. I don't want that kind of talk in my law enforcement
agency, whether you mean it or not. It shows poor judgment, and
you're fired.'"
"Was that the basis for his dismissal?"
"MR. LEE: Your Honor, I would say not, based upon two trials
that we have been through in the District Court."
Tr. of Oral Arg. 10-11.
[
Footnote 16]
Rankin's assertion, as evidently credited by the District Court
after its first hearing, was that he discharged respondent because
her statement undermined his "confidence" in her. App. 42-43. After
its second hearing, the District Court did not state clearly what
it concluded the motive for respondent's discharge to be.
Petitioners' counsel, at oral argument, suggested that McPherson
was discharged because she hoped that the President would be
assassinated. Tr. of Oral Arg. 11-13. The Court of Appeals
similarly classified the District Court's finding.
See 786
F.2d at 1237 ("For the purpose of applying the
Pickering/Connick balancing test, we accept the district
court's conclusion that McPherson actually hoped that the President
would be assassinated"). We are not persuaded that the Court of
Appeals has properly divined the meaning of the District Court's
findings, but, even accepting the Court of Appeals' view, we agree
with the Court of Appeals that the speech was protected.
[
Footnote 17]
We therefore reject the notion, expressed by petitioners'
counsel at oral argument, that the fact that an employee was
deputized meant, regardless of that employee's job responsibility,
that the Constable could discharge the employee for any expression
inconsistent with the goals of a law enforcement agency.
"MR. LEE [counsel for petitioners]: The man who sweeps the floor
in the constable's office is not employed by the constable. He's
employed by commissioners' court, who takes care of all of the
courthouses."
Tr. of Oral Arg. 6.
"QUESTION: I guess it's a lucky thing then that the constable is
not himself responsible for keeping the courthouse clean, which
could have been the case. I mean, you -- "
"MR. LEE: Which could have been the case, yes, sir. That is
right, because he would then -- "
"QUESTION: Then your argument would indeed extend to the man who
swept the floor; right?"
"
* * * *"
"QUESTION: And you would be making the same argument here --
"
"MR. LEE: Yes, sir."
"QUESTION: -- because that man had the name of deputy?"
"MR. LEE: That's right."
Id. at 8.
[
Footnote 18]
This is not to say that clerical employees are insulated from
discharge where their speech, taking the acknowledged factors into
account, truly injures the public interest in the effective
functioning of the public employer.
Cf. McMullen v.
Carson, 754 F.2d 936 (CA11 1985) (clerical employee in
sheriff's office properly discharged for stating on television news
that he was an employee for the sheriff's office and a recruiter
for the Ku Klux Klan).
JUSTICE POWELL, concurring.
It is not easy to understand how this case has assumed
constitutional dimensions and reached the Supreme Court of the
United States. The fact that the case is here, however, illustrates
the uniqueness of our Constitution and our system of judicial
review: courts at all levels are available and receptive to claims
of injustice, large and small, by any and every citizen of this
country.
As the Court notes, at the time this dispute arose, respondent
McPherson was a 19-year-old probationary employee in the
Constable's office in Harris County, Texas. Her only job was to
type information from court papers into a computer. She had no law
enforcement responsibility, nor was she permitted to perform the
primary task of the Constable's office, serving civil process.
While she was seated at her desk, the office radio announced the
shocking news that someone had tried to assassinate the President.
Reacting to the report, McPherson engaged in a brief conversation
with her coworker, at the end of which she said: "[I]f they go for
him again, I hope they get him." Tr. (Jan. 21, 1985), p. 73. This
unfortunate remark was overheard by another
Page 483 U. S. 393
employee, who relayed it to the Constable. McPherson immediately
was summoned to the Constable's office, where she freely admitted
having made the statement. Based on this single comment, McPherson
was summarily discharged.
There is no dispute that McPherson's comment was made during a
private conversation with a coworker who happened also to be her
boyfriend. She had no intention or expectation that it would be
overheard or acted on by others. Given this, I think it is
unnecessary to engage in the extensive analysis normally required
by
Connick v. Myers, 461 U. S. 138
(1983), and
Pickering v. Board of Education, 391 U.
S. 563 (1968). If a statement is on a matter of public
concern, as it was here, 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. The risk that
a single, offhand comment directed to only one other worker will
lower morale, disrupt the workforce, or otherwise undermine the
mission of the office borders on the fanciful.
* To the extent
that the full constitutional analysis of the competing interests is
required, I generally agree with the Court's opinion.
Page 483 U. S. 394
In my view, however, the case is hardly as complex as might be
expected in a dispute that now has been considered five separate
times by three different federal courts. The undisputed evidence
shows that McPherson made an ill-considered -- but protected --
comment during a private conversation, and the Constable made an
instinctive, but intemperate, employment decision on the basis of
this speech. I agree that, on these facts, McPherson's private
speech is protected by the First Amendment.
I join the opinion of the Court.
* I recognize, and strongly agree, that a public employer, no
less than his private-sector counterpart, must have authority to
maintain the efficiency as well as the integrity of his office. As
the Court notes, "
the State, as an employer, [has an interest]
in promoting the efficiency of the public services it performs
through its employees.'" Ante at 483 U. S. 384
(quoting Pickering v. Board of Education, 391 U.
S. 563, 391 U. S. 568
(1968), and Connick v. Myers, 461 U.
S. 138, 461 U. S. 140
(1983)). I do not read the Court's opinion as extending the
Connich-/Pickering test, or otherwise making it more
difficult for employers to discipline workers whose speech
interferes with these goals. Cf. Arnett v. Kennedy,
416 U. S. 134,
416 U. S. 168
(1974) (POWELL, J., concurring in part and concurring in result in
part) ("[T]he Government's interest in being able to act
expeditiously to remove an unsatisfactory employee is substantial")
(footnote omitted). In this case, however, there is no objective
evidence that McPherson's lone comment had any negative effect on
the morale or efficiency of the Constable's office. See
ante at 483 U. S.
388-389.
JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and
JUSTICE O'CONNOR join, dissenting.
I agree with the proposition, felicitously put by Constable
Rankin's counsel, that no law enforcement agency is required by the
First Amendment to permit one of its employees to "ride with the
cops and cheer for the robbers." App. 94. The issue in this case is
whether Constable Rankin, a law enforcement official, is prohibited
by the First Amendment from preventing his employees from saying of
the attempted assassination of President Reagan -- on the job and
within hearing of other employees -- "If they go for him again, I
hope they get him." The Court, applying the two-prong analysis of
Connick v. Myers, 461 U. S. 138
(1983), holds that McPherson's statement was protected by the First
Amendment because (1) it "addressed a matter of public concern,"
and (2) McPherson's interest in making the statement outweighs
Rankin's interest in suppressing it. In so doing, the Court
significantly and irrationally expands the definition of "public
concern"; it also carves out a new and very large class of
employees --
i.e., those in "nonpolicymaking" positions --
who, if today's decision is to be believed, can never be
disciplined for statements that fall within the Court's expanded
definition. Because I believe the Court's conclusions rest upon a
distortion of both the record and the Court's prior decisions, I
dissent.
Page 483 U. S. 395
I
To appreciate fully why the majority errs in reaching its first
conclusion, it is necessary to recall the origins and purposes of
Connick's "public concern" requirement. The Court long ago
rejected Justice Holmes' approach to the free speech rights of
public employees, that "[a policeman] may have a constitutional
right to talk politics, but he has no constitutional right to be a
policeman,"
McAuliffe v. Mayor of New Bedford, 155 Mass.
216, 220, 29 N.E. 517 (1892). We have, however, recognized that the
government's power as an employer to make hiring and firing
decisions on the basis of what its employees and prospective
employees say has a much greater scope than its power to regulate
expression by the general public.
See, e.g., Pickering v. Board
of Education, 391 U. S. 563,
391 U. S. 568
(1968).
Specifically, we have held that the First Amendment's protection
against adverse personnel decisions extends only to speech on
matters of "public concern,"
Connick, supra, at
461 U. S.
147-149, which we have variously described as those
matters dealing in some way with "the essence of self-government,"
Garrison v. Louisiana, 379 U. S. 64,
379 U. S. 74-75
(1964), matters as to which "free and open debate is vital to
informed decisionmaking by the electorate,"
Pickering,
supra, at
391 U. S.
571-572, and matters as to which "
debate . . .
[must] be uninhibited, robust, and wide-open,'" Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.
S. 749, 472 U. S. 755
(1985) (plurality opinion) (quoting New York Times Co. v.
Sullivan, 376 U. S. 254,
376 U. S. 270
(1964)). In short, speech on matters of public concern is that
speech which lies "at the heart of the First Amendment's
protection," First Nat. Bank v. Bellotti, 435 U.
S. 765, 435 U. S. 776
(1978). If, but only if, an employee's speech falls within this
category, a public employer seeking to abridge or punish it must
show that the employee's interest is outweighed by the government's
interest, "as an employer, in promoting the efficiency of the
public services it performs through its employees." Pickering,
supra, at 391 U. S.
568.
Page 483 U. S. 396
McPherson fails this threshold requirement. The statement for
which she was fired -- and the only statement reported to the
Constable -- was, "If they go for him again, I hope they get him."
It is important to bear in mind the District Judge's finding that
this was
not hyperbole. The Court's opinion not only does
not clarify that point, but beclouds it by a footnote observing
that the District Judge did not explicitly resolve the conflict in
testimony as to whether McPherson told the Constable that she
"meant" what she had said.
Ante at
483 U. S. 382,
n 4. He did not. But he
assuredly found that, whether McPherson later said she meant it or
not, and whether she even meant it at the time or not, the idea she
expressed was not just an exaggerated expression of her disapproval
for the President's policies, but a voicing of the hope that, next
time, the President would be killed. The District Judge rejected
McPherson's argument that her statement was "mere political
hyperbole," finding, to the contrary, that it was, "in context,"
"violent words." 786 F.2d 1233, 1235 (CA5 1986).
"This is not,' he said, 'the situation where one makes an idle
threat to kill someone for not picking them [
sic] up on
time, or not picking up their [
sic] clothes. It was more
than that."
Ibid. He ruled against McPherson at the conclusion of
the second hearing because "I don't think it is a matter of public
concern to approve even more to [
sic] the second attempt
at assassination." App. 119. The Court's opinion does not attempt
to set aside this finding as to the import of the statement, and
there is indeed no basis for doing so, since it is entirely
reasonable and supported by the evidence.
Given the meaning of the remark, there is no basis for the
Court's suggestion,
ante at
483 U. S.
386-387, that McPherson's criticisms of the President's
policies that immediately preceded the remark can illuminate it in
such fashion as to render it constitutionally protected. Those
criticisms merely reveal the speaker's
motive for
expressing the desire that the next attempt on the President's life
succeed, in the same way that
Page 483 U. S. 397
a political assassin's remarks to his victim before pulling the
trigger might reveal a motive for that crime. The majority's
magical transformation of the
motive for McPherson's
statement into its
content is as misguided as viewing a
political assassination preceded by a harangue as nothing more than
a strong denunciation of the victim's political views.
That McPherson's statement does not constitute speech on a
matter of "public concern" is demonstrated by comparing it with
statements that have been found to fit that description in prior
decisions involving public employees. McPherson's statement is a
far cry from the question by the Assistant District Attorney in
Connick whether her coworkers "ever [felt] pressured to
work in political campaigns,"
Connick, 461 U.S. at
461 U. S. 149;
from the letter written by the public school teacher in
Pickering criticizing the Board of Education's proposals
for financing school construction,
Pickering, supra, at
391 U. S. 566;
from the legislative testimony of a state college teacher in
Perry v. Sindermann, 408 U. S. 593,
408 U. S. 595
(1972), advocating that a particular college be elevated to 4-year
status; from the memorandum given by a teacher to a radio station
in
Mt. Healthy City Board of Ed. v. Doyle, 429 U.
S. 274,
429 U. S. 282
(1977), dealing with teacher dress and appearance; and from the
complaints about school board policies and practices at issue in
Givhan v. Western Line Consolidated School Dist.,
439 U. S. 410,
439 U. S. 413
(1979).
See Connick, supra, at
461 U. S.
145-146.
McPherson's statement is indeed so different from those that it
is only one step removed from statements that we have previously
held entitled to no First Amendment protection even in the
nonemployment context -- including assassination threats against
the President (which are illegal under 18 U.S.C. § 871),
see
Frohwerk v. United States, 249 U. S. 204,
249 U. S. 206
(1919); "
fighting' words," Chaplinsky v. New
Hampshire, 315 U. S. 568,
315 U. S. 572
(1942); epithets or personal abuse, Cantwell v.
Connecticut, 310 U. S. 296,
310 U. S.
309-310 (1940); and advocacy of force or violence,
Harisiades v. Shaughnessy, 342 U.
S. 580, 342 U. S.
591-592 (1952). A statement
Page 483 U. S. 398
lying so near the category of completely unprotected speech
cannot fairly be viewed as lying within the "heart" of the First
Amendment's protection; it lies within that category of speech that
can neither be characterized as speech on matters of public concern
nor properly subject to criminal penalties,
see Connick,
supra, at
461 U. S. 147.
Once McPherson stopped explicitly criticizing the President's
policies and expressed a desire that he be assassinated, she
crossed the line.
The Court reaches the opposite conclusion only by distorting the
concept of "public concern." It does not explain how a statement
expressing approval of a serious and violent crime -- assassination
of the President -- can possibly fall within that category. It
simply rehearses the "context" of McPherson's statement, which, as
we have already seen, is irrelevant here, and then concludes that,
because of that context, and because the statement "came on the
heels of a news bulletin regarding what is certainly a matter of
heightened public attention: an attempt on the life of the
President," the statement "plainly dealt with a matter of public
concern."
Ante at
483 U. S. 386. I cannot respond to this progression of
reasoning except to say I do not understand it. Surely the Court
does not mean to adopt the reasoning of the court below, which was
that McPherson's statement was "addressed to a matter of public
concern" within the meaning of
Connick because the public
would obviously be "concerned" about the assassination of the
President. That is obviously untenable: the public would be
"concerned" about a statement threatening to blow up the local
federal building or demanding a $1 million extortion payment, yet
that kind of "public concern" does not entitle such a statement to
any First Amendment protection at all.
II
Even if I agreed that McPherson's statement was speech on a
matter of "public concern," I would still find it unprotected. It
is important to be clear on what the issue is in this part of the
case. It is not, as the Court suggests,
Page 483 U. S. 399
whether "Rankin's interest
in discharging [McPherson]
outweighed her rights under the First Amendment."
Ante at
483 U. S. 392
(emphasis added). Rather, it is whether his interest
in
preventing the expression of such statements in his agency
outweighed her First Amendment interest in making the statement. We
are not deliberating, in other words (or at least should not be),
about whether the sanction of dismissal was, as the concurrence
puts it, "an . . . intemperat[e] employment decision." It may well
have been -- and personally I think it was. But we are not sitting
as a panel to develop sound principles of proportionality for
adverse actions in the state civil service. We are asked to
determine whether, given the interests of this law enforcement
office, McPherson had a
right to say what she did -- so
that she could not only not be fired for it, but could not be
formally reprimanded for it, or even prevented from repeating it
endlessly into the future. It boggles the mind to think that she
has such a right.
The Constable testified that he "was very concerned that this
remark was made." App. 81. Rightly so. As a law enforcement
officer, the Constable obviously has a strong interest in
preventing statements by any of his employees approving, or
expressing a desire for, serious, violent crimes -- regardless of
whether the statements actually interfere with office operations at
the time they are made or demonstrate character traits that make
the speaker unsuitable for law enforcement work. In
Connick, we upheld the dismissal of an Assistant District
Attorney for circulating among her coworkers a questionnaire
implicitly criticizing her superiors. Although we held that one of
the questions -- dealing with pressure in the office to participate
in political campaigns -- satisfied the "public concern"
requirement, we held that the discharge nonetheless did not violate
the First Amendment because the questionnaire itself "carrie[d] the
clear potential for undermining office relations."
Connick,
supra, at
461 U. S. 152.
Statements like McPherson's obviously carry a similar potential in
an office devoted to law enforcement. Although that
Page 483 U. S. 400
proposition is, in my view, evident on its face, we have actual
evidence of it in the present record: the only reason McPherson's
remark was brought to the Constable's attention was that one of his
deputies, Captain Levrier, had overheard the remark and, according
to the Constable, "was very upset because of [it]." App. 80.*
Statements by the Constable's employees to the effect that, "if
they go for the President again, I hope they get him" might also,
to put it mildly, undermine public confidence in the Constable's
office. A public employer has a strong interest in preserving its
reputation with the public.
See, e.g., Snepp v. United
States, 444 U. S. 507,
444 U. S. 509,
n. 3 (1980);
CSC v. Letter Carriers, 413 U.
S. 548,
413 U. S.
564-565 (1973). We know -- from undisputed testimony --
that McPherson had or might have had some occasion to deal with the
public while carrying out her duties.
See App. 73
(answering telephone inquiries);
id. at 78-79 (personal
assistance).
The Court's sweeping assertion (and apparent holding) that,
where an employee "serves no confidential, policymaking, or public
contact role, the danger to the agency's successful functioning
from that employee's private speech is minimal,"
ante at
483 U. S.
390-391, is simply contrary to reason and experience.
Nonpolicymaking employees (the Assistant District Attorney in
Connick, for example) can hurt working relationships and undermine
public confidence in all organization every bit as much as
policymaking employees. I, for one, do not look forward to the new
First Amendment world the Court creates, in which nonpolicymaking
employees of the Equal Employment Opportunity Commission must
Page 483 U. S. 401
be permitted to make remarks on the job approving of racial
discrimination, nonpolicymaking employees of the Selective Service
System to advocate noncompliance with the draft laws, and (since it
is really quite difficult to contemplate anything more absurd than
the present case itself), nonpolicymaking constable's deputies to
express approval for the assassination of the President.
In sum, since Constable Rankin's interest in maintaining both an
esprit de corps and a public image consistent with his
office's law enforcement duties outweighs any interest his
employees may have in expressing on the job a desire that the
President be killed, even assuming that such an expression
addresses a matter of public concern, it is not protected by the
First Amendment from suppression. I emphasize once again that that
is the issue here -- and
not, as both the Court's opinion
and especially the concurrence seem to assume, whether the means
used to effect suppression (
viz., firing) were excessive.
The First Amendment contains no "narrow tailoring" requirement that
speech the government is entitled to suppress must be suppressed by
the mildest means possible. If Constable Rankin was entitled (as I
think any reasonable person would say he was) to admonish McPherson
for saying what she did on the job, within hearing of her
coworkers, and to warn her that, if she did it again a formal
censure would be placed in her personnel file, then it follows that
he is entitled to rule that particular speech out of bounds in that
particular work environment -- and that is the end of the First
Amendment analysis. The "intemperate" manner of the permissible
suppression is an issue for another forum, or at least for a more
plausibly relevant provision of the Constitution.
Because the statement at issue here did not address a matter of
public concern, and because, even if it did, a law enforcement
agency has adequate reason not to permit such expression, I would
reverse the judgment of the court below.
* The majority errs in asserting that
"Constable Rankin testified that the possibility of interference
with the functions of the Constable's office had not been a
consideration in his discharge of respondent."
Ante at
483 U. S. 389.
In fact, the statement on which the majority relies for that
proposition merely affirms that the Constable did not base his
decision "
on whether the work was interrupted or not.'" See
ante at 483 U. S. 389,
n. 14, quoting Tr. (Jan. 21, 1985), p. 45. That says nothing about
his perceptions of the effect of such statements upon office morale
and efficiency.