Lead Opinion
delivered the opinion of
Among other rights essential to freedom, the First Amendment protects “the
Alone among the Courts of Appeals to have addressed the issue, the Court of Appeals for' the Third Circuit has held that the public concern test does not limit Petition
I
Charles Guarnieri filed a union grievance challenging his termination as chief of police for the borough of Duryea, a town of about 4,600 persons in northeastern Pennsylvania. His grievance proceeded to arbitration pursuant to the police union collective-bargaining agreement. The arbitrator found that the borough council, Duryea’s legislative body and the entity responsible for Guarnieri’s termination, committed procedural errors in connection with the termination; and the arbitrator also found that Guarnieri engaged in misconduct, including "attempting to intimidate Council members. ” App. 37, 38. The arbitrator ordered Guarnieri reinstated after a disciplinary suspension. Id., at 38.
Upon Guarnieri’s return to the job, the council issued 11 directives instructing Guarnieri in the performance of his duties. The council’s attorney explained that the council “wanted to be sure that the chief understood what was going to be expected of him upon his return.” Tr. 19:12-14 (Apr. 16, 2008). One directive prohibited Guarnieri from working overtime without the council’s “express permission.” App. 59, ¶ 1. Another indicated that “[t]he police car is to be used for official business only.” Id., at 60, ¶ 9. A third stated that the “Duryea municipal building is a smoke free building” and that the “police department is not exempt.” Id., at 61, ¶ 10. Guarnieri testified that, because of these and other directives, his “coming back wasn’t a warm welcoming feeling.” Tr. 65:7-8 (Apr. 15, 2008). Guarnieri filed a second union grievance challenging the directives. The arbitrator instructed the council to modify or withdraw some of the directives on the grounds that they were vague, interfered with the authority of the mayor, or were contrary to the collective-bargaining agreement.
Guarnieri filed this lawsuit against the borough, the borough council, and individual members of the council under Rev. Stat. § 1979, 42 U. S. C. § 1983. Guarnieri claimed that his first union grievance was a petition protected by the Petition Clause of the First Amendment, and he alleged that the directives issued upon his reinstatement were retaliation for that protected activity.
After this suit was filed, the council denied a request by Guarnieri for $338 in overtime. The United States Department of Labor investigated and concluded that Guarnieri was entitled to be paid. The council offered Guarnieri a cheek for the amount, but Guarnieri refused to accept it. Instead, Guarnieri amended his complaint to encompass the denial of overtime. Guarnieri alleged that his § 1983 lawsuit was a petition and that the denial of overtime constituted retaliation for his having filed the lawsuit.
Under the law of the Circuit, the defendants could not obtain judgment as a matter of law on the basis that the lawsuit and grievances were not on a matter of public concern. The case proceeded to a jury. Guarnieri’s attorney argued that the council was “sending a message to” Guarnieri through the directives and the denial of overtime: “You might have won your arbitration, but we control you.” Tr. 53:24-25 (Apr. 17, 2008). The District Court instructed the jury that the lawsuit and union grievances were “protected activity... under the constitution,” and that the jury could find defendants liable if it found an adequate connection between the protected activity and the alleged retaliation. Id., at 61:17-20; 62. The jury found in favor of Guarnieri. The jury awarded $45,000 in compensatory damages and $24,000 in punitive
Defendants appealed on the ground that Guarnieri’s grievances and lawsuit did not address matters of public concern. Courts outside the Third Circuit have held that allegedly retaliatory actions by government employers against government employees may not give rise to liability under the Petition Clause unless the employee’s petition related to a matter of public concern. See, e. g., Kirby v. Elizabeth City,
Rejecting that view, the Court of Appeals here affirmed the award of compensatory damages, although it found insufficient evidence to sustain the award of punitive damages. The Court of Appeals concluded that ‘“a public employee who has petitioned the government through a formal mechanism such as the filing of a lawsuit or grievance is protected under the Petition Clause from retaliation for that activity, even if the petition concerns a matter of solely private concern.’”
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When a public employee sues a government employer under the First Amendment’s Speech Clause, the employee must show that he or she spoke as a citizen on a matter of public concern. Connick v. Myers,
This framework “reconcile[s] the employee’s right to engage in speech and the government employer’s right to protect its own legitimate interests in performing its mission.” San Diego v. Roe,
This case arises under the Petition Clause, not the Speech Clause. The parties litigated the case on the premise that Guarnieri’s grievances and lawsuit are petitions protected by the Petition Clause. This Court's precedents confirm that the Petition Clause protects the right of individuals to appeal to courts and other forums established by the government for resolution of legal disputes. “[T]he right of access to courts for redress of wrongs is an aspect of the First Amendment right to petition the government.” Sure-Tan, Inc. v. NLRB,
Although this ease proceeds under the Petition Clause, Guarnieri just as easily could have alleged that his employer retaliated against him for the speech contained within his grievances and lawsuit. That claim would have been subject to the public concern test already described. Because Guarnieri chose to proceed under the Petition Clause, however, the Court of Appeals applied a more generous rule. Following the decision of the Court of Appeals in San Filippo, supra, at 443, Guarnieri was deemed entitled to protection from retaliation so long as his petition was not a “sham.” Under that rule, defendants and other public employers might be liable under the Petition Clause even if the same conduct would not give rise to liability under the Speech Clause. The question presented by this case is whether the history and purpose of the Petition Clause justify the imposition of broader liability when an employee invokes its protection instead of the protection afforded by the Speech Clause.
It is not necessary to say that the two Clauses are identical in their mandate or their purpose and effect to acknowledge that the rights of speech and petition share substantial common ground. This Court has said that the right to speak and the right to petition are “cognate rights.” Thomas v. Collins,
Courts should not presume there is always an essential equivalence in the two Clauses or that Speech Clause precedents necessarily and in every case resolve Petition Clause claims. See ibid, (rights of speech and petition are “not identical”). Interpretation of the Petition Clause must be guided by the objectives and aspirations that underlie the right. A petition conveys the special concerns of its author to the government and, in its usual form, requests action by the government to address those concerns. See Sure-Tan, Inc., supra, at 896-897.
This Court’s opinion in McDonald v. Smith,
As other Courts of Appeals have recognized, however, claims of retaliation by public employees do not call for this divergence. See supra, at 385. The close connection between these rights has led Courts of Appeals other than the Third Circuit to apply the public concern test developed in Speech Clause cases to Petition Clause claims by public employees. As will be explained farther, this approach is justified by the extensive common ground in the definition and delineation of these rights. The considerations that shape the application of the Speech Clause to public employees apply with equal force to claims by those employees under the Petition Clause.
The substantial government interests that justify a cautious and restrained approach to the protection of speech by public employees are just as relevant when public employees proceed under the Petition Clause. Petitions, no less than speech, can interfere with the efficient and effective operation of government. A petition may seek to achieve results that “contravene governmental policies or impair the proper performance of governmental functions.” Garcetti,
When a petition takes the form of a lawsuit against the government employer, it may be particularly disruptive. Unlike speech of other sorts, a lawsuit demands a response. Mounting a defense to even frivolous claims may consume the time and resources of the government employer. Outside the context of public employment, this Court has recognized that the Petition Clause does not protect “objectively baseless” litigation that seeks to “ ‘interfere directly with the business relationships of a competitor.’ ” Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc.,
Unrestrained application of the Petition Clause in the context of government employment would subject a wide range of government operations to invasive judicial superintendence. Employees may file grievances on a variety of employment matters, including working conditions, pay, discipline, promotions, leave, vacations, and terminations. See Brief for National School Boards. Association as Amicus Curiae 5. Every government action in response could present a potential federal constitutional issue. Judges and juries, asked to determine whether the government’s actions were in fact retaliatory, would be required to give scrutiny to both the government’s response to the grievance and the government’s justification for its actions. This would occasion review of a host of collateral matters typically left to the discretion of public officials. Budget priorities, personnel decisions, and substantive policies might all be laid before the jury. This would raise serious federalism and separation-of-powers concerns. It would also consume the time and attention of public officials, burden the exercise of legitimate authority, and blur the lines of accountability between officials and the public.
This case illustrates these risks and costs. Guarnieri’s attorney invited the jury to review myriad details of government decisionmaking. She questioned the council’s decision to issue directives in writing, rather than orally, Tr. 66 (Apr. 14, 2008); the council’s failure to consult the mayor before issuing the directives, id., at 105 (Apr. 15, 2008); the amount of money spent to employ “Philadelphia lawyers” to defend Guarnieri’s legal challenges, id., at 191 to 193:7-10 (Apr. 14, 2008), 152-153 (Apr. 16,2008); and the wisdom of the council’s decision to spend money to install Global Positioning System devices on police cars, id., at 161-162 (same). Finally, the attorney invited the jury to evaluate the council’s decisions in light of an emotional appeal on behalf of Guarnieri’s “little
If the Petition Clause were to apply even where matters of public concern are not involved, that would be unnecessary, or even disruptive, when there is already protection for the rights of public employees to file grievances and to litigate. The government can and often does adopt statutory and regulatory mechanisms to protect the rights of employees against improper retaliation or discipline, while preserving important government interests. Cf. Garcetti, supra, at 425 (noting a “powerful network of legislative enactments”). Employees who sue under federal and state employment laws often benefit from generous and quite- detailed anti-retaliation provisions. See, e.g., Pa. Stat. Ann., Tit. 43, § 1101.1201(a)(4) (Purdon 2009); §1101.1302. These statutory protections are subject to legislative revision and can be designed for the unique needs of State, local, or Federal Governments, as well as the special circumstances of particular governmental offices and agencies. The Petition Clause is not an instrument for public employees to circumvent these legislative enactments when pursuing claims based on ordinary workplace grievances.
In light of the government’s interests in the public employment context, it would be surprising if Petition Clause claims by public employees were not limited as necessary to protect the employer’s functions and responsibilities. Even beyond the Speech Clause, this Court has explained that “government has significantly greater leeway in its dealings with' citizen employees than it does when it brings its sovereign power to bear on citizens at large.” Engquist v. Oregon Dept. of Agriculture,
The public concern test was developed to protect these substantial government interests. Adoption of a different rule for Petition Clause claims would provide a ready means for public employees to circumvent the test’s protections. Consider Sheila Myers, who was the original plaintiff in Con-nick. She circulated “a questionnaire soliciting the views of her fellow staff members” on various office matters.
Guarnieri claims application of the public concern test to the Petition Clause would be inappropriate in light of the private nature of many petitions for redress of grievances. The Petition Clause undoubtedly does have force and application in the context of a personal grievance addressed to the government. See, e. g., Trainmen v. Virginia ex rel. Virginia State Bar,
There is, however, no merit to the suggestion that the public concern test cannot apply under the Petition Clause because the majority of petitions to colonial legislatures addressed matters of purely private concern. In analogous cases under the Speech Clause, this Court has noted the “Constitution’s special concern with threats to the right of citizens to participate in political affairs,” Connick, supra, at 145, even though it is likely that, in this and any other age, most speech concerns purely private matters. The proper scope and application of the Petition Clause likewise cannot be determined merely by tallying up petitions to the colonial legislatures. Some effort musl be made to identify the historic and fundamental principles that led to the enumeration of the right to petition in the First Amendment, among other rights fundamental to liberty.
Petitions to the government assume an added dimension when they seek to advance political, social, or other ideas of interest to the community as a whole. Petition, as a word, a concept, and an essential safeguard of freedom, is of ancient significance in the English law and the Anglo-American legal tradition. See, e. g., 1 W. Blackstone, Commentaries *143. The right to petition applied to petitions from nobles to the King, from Parliament to the King, and from the people to the Parliament, and it concerned both discrete, personal injuries and great matters of state.
The following years saw use of mass petitions to address matters of public concern. See 8 D. Hume, History of England from the Invasion of Julius Caesar to the Revolution in 1688, p. 122 (1763) (“Tumultuous petitioning... was an admirable expedient... for spreading discontent, and for uniting the nation in any popular clamour”). In 1680, for instance, more than 15,000 persons signed a petition regarding the summoning and dissolution of Parliament, “one of the major political issues agitating the nation.” Knights, London’s ‘Monster’ Petition, 36 Historical Journal 39, 40-43 (1993). Nine years later, the Declaration of Right listed the illegal acts of the sovereign and set forth certain rights of the King’s subjects, one of which was the right to petition the sovereign. It stated that “it is the Right of the Subjects to petition the King and all Commitments and Prosecutions for such Petitioning are Illegall.” 1 W. & M., ch. 2, 6 Statutes of the Realm 143; see also L. Schwoerer, The Declaration of Rights, 1689, pp. 69-71 (1981).
The Declaration of Independence of 1776 arose in the same tradition. After listing other specific grievances and wrongs, it complained, “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.” The Declaration of Independence ¶ 30.
After independence, petitions on matters of public concern continued to be an essential part of contemporary debates in this country’s early history. Two years before the adoption of the Constitution, James Madison's Memorial and Remonstrance against Religious Assessments, an important document in the history of the Establishment Clause, was presented to the General Assembly of the Commonwealth of Virginia as a petition. See 1 D. Layeock, Religious Liberty: Overviews and History 90 (2010); Arizona Christian School Tuition Organization v. Winn,
Petitions to the National Legislature also played a central part in the legislative debate on the subject of slavery in the years before the Civil War. See W. Miller, Arguing About Slavery (1995). Petitions
Petitions to the courts and similar bodies can likewise address matters of great public import. In the context of the civil rights movement, litigation provided a means for “the distinctive contribution of a minority group to the ideas and beliefs of our society.” NAACP v. Button,
The government may not misuse its role as employer unduly to distort this deliberative process. See Garcetti,
The framework used to govern Speech Clause claims by public employees, when applied to the Petition Clause, will protect both the interests of the government and the First Amendment right. If a public employee petitions as an employee on a matter of purely private concern, the employee's First Amendment interest must give way, as it does in speech cases. Roe,
Of course in one sense the public may always be interested in how government officers are performing their duties. But as the Connick and Pickering test has evolved, that will not .always suffice to show a matter of public concern. A petition that “involves nothing more than a complaint about a change in the employee’s own duties” does not relate to a matter of public concern and accordingly “may give rise to discipline without imposing any special burden of justification on the government employer.” United States v. Treasury Employees,
Ill
• Because the Third Circuit did not find it necessary to apply this framework, there has been no determination as to how it would apply in the context of this case. The parties did not address the issue in the opening brief or the response, and the United States did not address the issue in its brief as amicus curiae. In their reply brief, petitioners suggest that this Court should address the issue and resolve it in their favor. Yet in their opening brief petitioners sought only vacatur and remand. This Court need not consider this issue without the benefit of foil briefs by the parties.
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Concurrence Opinion
concurring in the judgment.
For the reasons set forth by Justice Scalia, I seriously doubt that lawsuits are “petitions” within the original meaning of the Petition Clause of the First Amendment. See post, at 403-404 (opinion concurring in judgment in part and dissenting in part). Unreasoned statements to the contrary in this Court’s prior decisions do not convince me otherwise. Like the Court, however, I need not decide that question today because “[t]he parties litigated the case on the premise that Guarnieri’s grievances and lawsuit are petitions protected by the Petition Clause.” Ante, at 387.
I also largely agree with Justice Scalia about the framework for assessing public employees’ retaliation claims under the Petition Clause. The “public concern” doctrine of Connick v. Myers,
But I would not end the analysis after determining that a petition was addressed to the government as sovereign. Recognizing “the realities of the employment context,” we have held that “government has significantly greater leeway in its dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large.” Engquist v. Oregon Dept. of Agriculture,
Applying this framework, I would vacate the judgment and remand. The Court of Appeals erred with respect to both Guarnieri’s union grievance and his 42 U. S. C. § 1983 suit. First, even assuming the grievance was a petition, it was addressed to the local government in its capacity as Guarnieri’s employer. See post, at 408 (opinion of Scalia, J.). Second, Guarnieri addressed his § 1983 suit to the Federal Government in its capacity as sovereign, not to the local government as his employer. See ibid. But the Court of Appeals did not consider whether the local government’s interest as an employer “in achieving its goals as effectively and efficiently as possible” nevertheless outweighs Guarnieri’s interest in petitioning the Federal Government regarding his local employment. Engquist, supra, at 598 (internal quotation marks omitted). I would vacate and remand for the Court of Appeals to conduct that analysis in the first instance.
Concurrence Opinion
concurring in the judgment in part and dissenting in part.
I disagree with two aspects of the Court’s reasoning. First, the Court is incorrect to state that our “precedents confirm that the Petition Clause protects the right of individuals to appeal to courts and other forums established by the government for resolution of legal disputes.” Ante, at 387. Our first opinion clearly saying that lawsuits are “Petitions” under the Petition Clause came less than 40 years ago. In California Motor Transport Co. v. Trucking Unlimited,
.1 find the proposition that a lawsuit is a constitutionally protected “Petition” quite doubtful. The First Amendment’s Petition Clause states that “Congress shall make no law .. . abridging . . . the right of the people ... to petition the Government for a redress of grievances.” The reference to “the right of the people” indicates that the Petition Clause was intended to codify a pre-existing individual right, which means that we must look to historical practice to determine its scope. See District of Columbia v. Heller,
There is abundant historical evidence that “Petitions” were directed to the executive and legislative branches of government, not to the courts. In 1765, the Stamp Act Congress stated “[t]hat it is the right of the British subjects in these colonies to petition the King or either House of Parliament.” Declaration of Rights and Grievances, Art. 13, reprinted in 1 B. Schwartz, The Bill of Rights: A Documentary History 195, 198 (1971); it made no mention of petitions directed to the courts. As of 1781, seven state constitutions protected citizens’ right to apply or petition for redress of grievances; all seven referred only to legislative petitions. See Andrews, A Right of Access to Court Under the Petition Clause of the First Amendment: Defining the Right, 60 Ohio St. L. J. 557, 604-605, n. 159 (1999). The Judiciary Act of 1789 did not grant federal trial courts jurisdiction to hear lawsuits arising under federal law; there is no indication anyone ever thought that this restriction
I acknowledge, however, that scholars have made detailed historical arguments to the contrary. See, e. g., Andrews, supra, at 595-625; Pfander, Sovereign Immunity and the Right To Petition: Toward a First Amendment Right To Pursue Judicial Claims Against the Government, 91 Nw. U. L. Rev. 899, 903-962 (1997). As the Court’s opinion observes, the parties have not litigated the issue, and so I agree we should leave its resolution to another day.
Second, and of greater practical consequence, I disagree with the Court’s decision to apply the “public concern” framework of Connick v. Myers,
Neither reason is persuasive. As to the former: The complexity of treating the Petition Clause and Speech Clause separately is attributable to the inconsiderate disregard for judicial convenience displayed by those who ratified a First Amendment that included both provisions as separate constitutional rights. A plaintiff does not engage in pernicious “circumvention” of our Speech Clause precedents when he brings a claim premised on a separate enumerated right to which those precedents are inapplicable.
As to the latter: Perhaps petitions on matters of public concern do in some sense involve an “added dimension,” but that
But the mere fact that we have a longstanding tradition of granting heightened protection to speech of public concern does not suggest that a “public concern” requirement should be written into other constitutional provisions. We would not say that religious proselytizing is entitled to more protection under the Free Exercise Clause than private religious worship because public proclamations are “core free exercise activity.” Nor would we say that the due process right to a neutral adjudicator is heightened in the context of litigation of national importance because such litigation is somehow at the “core of the due process guarantee.” Likewise, given that petitions to redress private grievances were such a high proportion of petitions at the founding — a, proportion that is infinitely higher if lawsuits are considered to be petitions — it is ahistorical to say that petitions on matters of public concern constitute “core petitioning activity.” In the Court’s view, if Guarnieri had submitted a letter to one of the borough of Duryea’s council members protesting a tax assessment that he claimed was mistaken; and if the borough had fired him in retaliation for that petition; Guarnieri would have no claim for a Petition Clause violation. That has to be wrong. It takes no account of, and thus frustrates, the principal purpose of the Petition Clause.
The Court responds that “[t]he proper scope and application of the Petition Clause . .. cannot be determined merely by tallying up petitions to the colonial legislatures,” ante, at 394, but that misses the point. The text of the Petition Clause does not distinguish petitions of public concern from petitions of private concern. Accordingly, there should be no doctrinal distinction between them unless the history or tradition of the Petition Clause justifies it. The mere fact that the Court can enumerate several historical petitions of public importance, ante, at 395-397, does not establish such a tradition, given that petitions for redress of private griev-anees vastly outnumbered them. Indeed, the Court’s holding is contrary to this Court’s historical treatment of the Petition Clause, assuming (as the Court believes) that the Clause embraces litigation: We have decided innumerable cases establishing constitutional fights with respect to litigation, and until today not a one of them has so much as hinted that litigation of public concern enjoys more of those rights than litigation of private concern. The Court’s belief in the social importance of public petitions, and its reminiscences of some of the public-petition greats of yesteryear, ibid., do not justify the proclamation of special constitutional rights for public petitions. It is the Constitution that establishes constitutional rights, not the Justices’ notions of what is important, or the top numbers on their Petition Hit Parade.
Rather than shoehorning the “public concern” doctrine into a Clause where it does not fit, we should hold that the Petition Clause protects public employees against retaliation for filing petitions unless those petitions are addressed to the government in its capacity as the petitioners’ employer, rather than its capacity as their sovereign. As the Court states, we have long held that “government has significantly greater leeway in its dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large.” Ante, at 392 (quoting Engquist, supra, at 599; internal quotation marks omitted). To apply to the Petition Clause context what we have said regarding the Speech Clause: When an employee files a petition with the government in its capacity as his employer, he is not acting “as [a] citize[n] for First Amendment purposes,” because “there is no relevant analogue to [petitions] by citizens who are not government employees.” Garcetti v. Ceballos,
Under what I think to be the proper test, the Third Circuit judgment before us here should be reversed in part and affirmed in part. The portion of it upholding Guarnieri’s claim of retaliation for having filed his union grievance must be reversed. A union grievance is the epitome of a petition addressed to the government in its capacity as the petitioner’s employer. No analogous petitions to the government could have been filed by private citizens, who are not even permitted to avail themselves of Guarnieri’s union grievance procedure. Contrariwise, the portion of the judgment upholding Guarnieri’s claim of retaliation for having filed his § 1983 claim must be affirmed. Given that Guarnieri was not an employee of the Federal Government, it is impossible to say that the § 1983 claim was addressed to government in its capacity as his employer. I think it clear that retaliating against a state employee for writing a letter to his Congressman about his state job would run afoul of the Petition Clause. Assuming that the § 1983 lawsuit should be treated like a letter to a Congressman
Notes
Respondent would agree, since he cited this case in argument as the earliest. Tr. of Oral Arg. 36. There were, however, three cases in the 1960’s which advortod vaguely to lawsuits as involving the right to petition. See Mine Workers v. Illinois Bar Assn.,
Compare, e. g., Alpha Energy Savers, Inc. v. Hansen,