Lead Opinion
delivered the opinion of the Court.
In Pickering v. Board of Education,
I
The respondent, Sheila Myers, was employed as an Assistant District Attorney in New Orleans for five and a half years. She served at the pleasure of petitioner Harry Connick, the District Attorney for Orleans Parish. During this period Myers competently performed her responsibilities of trying criminal cases.
In the early part of October 1980, Myers was informed that she would be transferred to prosecute cases in a different section of the criminal court. Myers was strongly opposed to the proposed transfer
That night Myers prepared a questionnaire soliciting the views of her fellow staff members concerning office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns.
Myers filed suit under 42 U. S. C. § 1983 (1976 ed., Supp. V), contending that her employment was wrongfully terminated because she had exercised her constitutionally protected right of free speech. The District Court agreed, ordered Myers reinstated, and awarded backpay, damages, and
Connick appealed to the United States Court of Appeals for the Fifth Circuit, which affirmed on the basis of the District Court’s opinion.
II
For at least 15 years, it has been settled that a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression. Keyishian v. Board of Regents,
The District Court got off on the wrong foot in this case by initially finding that, “[t]aken as a whole, 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.”
For most of this century, the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment — including those which restricted the exercise of constitutional rights. The classic formulation of this position was that of Justice Holmes, who, when sitting on the Supreme Judicial Court of Massachusetts, observed: “[A policeman] may have a constitutional
The Court cast new light on the matter in a series of cases arising from the widespread efforts in the 1950’s and early 1960’s to require public employees, particularly teachers, to swear oaths of loyalty to the State and reveal the groups with which they associated. In Wiemann v. Updegraff
In all of these cases, the precedents in which Pickering is rooted, the invalidated statutes and actions sought to suppress the rights of public employees to participate in public
Pickering v. Board of Education, supra, followed from this understanding of the First Amendment. In Pickering, the Court held impermissible under the First Amendment the dismissal of a high school teacher for openly criticizing the Board of Education on its allocation of school funds between athletics and education and its methods of informing taxpayers about the need for additional revenue. Pickering’s subject was “a matter of legitimate public concern” upon which “free and open debate is vital to informed decision-making by the electorate.”
Our cases following Pickering also involved safeguarding speech on matters of public concern. The controversy in Perry v. Sindermann,
Pickering, its antecedents, and its progeny 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.
We do not suggest, however, that Myers’ speech, even if not touching upon a matter of public concern, is totally beyond the protection of the First Amendment. “[T]he First Amendment does not protect speech and assembly only to the extent it can be characterized as political. ‘Great secular causes, with smaller ones, are guarded.’” Mine Workers v. Illinois Bar Assn.,
Whether an employee’s speech addresses a matter of public ~ concern must be determined by the content, form, and con
One question in Myers’ questionnaire, however, does touch-upon a matter of public concern. Question 11 inquires if assistant district attorneys “ever feel pressured to work in political campaigns on behalf of office supported candidates.” We have recently noted that official pressure upon employees to work for political candidates not of the worker’s own choice constitutes a coercion of belief in violation of fundamental constitutional rights. Branti v. Finkel,
B
Because one of the questions in Myers’ survey touched upon a matter of public concern and contributed to her discharge, we must determine whether Connick was justified in discharging Myers. Here the District Court again erred in imposing an unduly onerous burden on the State to justify
C
The Pickering balance requires full consideration of the government’s interest in the effective and efficient fulfillment of its responsibilities to the public. One hundred years ago, the Court noted the government’s legitimate purpose in “pro-
“To this end, the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch. Prolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect discipline and morale in the work place, foster disharmony, and ultimately impair the efficiency of an office or agency.”
We agree "with the District Court that there is no demonstration here that the questionnaire impeded Myers’ ability to perform her responsibilities. The District Court was also correct to recognize that “it is important to the efficient and successful operation of the District Attorney’s office for Assistants to maintain close working relationships with their superiors.”
The District Court rejected Connick’s position because “[ujnlike a statement of fact which might be deemed critical of one’s superiors, [Myers’] questionnaire was not a statement of fact but the presentation and solicitation of ideas and opinions,” which are entitled to greater constitutional protection because “ ‘under the First Amendment there is no such thing as a false idea.’ ” Ibid. This approach, while perhaps relevant in weighing the value of Myers’ speech, bears no logical relationship to the issue of whether the questionnaire undermined office relationships. 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. Thus, Question 10, which asked whether or not the Assistants had confidence in and relied on the word of five named supervisors, is a statement that carries the clear potential for undermining office relations.
Also relevant is the manner, time, and place in which the questionnaire was distributed. As noted in Givhan v. Western Line Consolidated School District,
Finally, the context in which the dispute arose is also significant. This is not a case where an employee, out of purely academic interest, circulated a questionnaire so as to obtain useful research. Myers acknowledges that it is no coincidence that the questionnaire followed upon the heels of the transfer notice. 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. Although we accept the District Court’s factual finding that Myers’ reluctance to accede to the transfer order was not a sufficient cause in itself for her dismissal, and thus does not constitute a sufficient defense under Mt Healthy
III
Myers’ questionnaire touched upon matters of public concern in only a most limited sense; her survey, in our view, is most accurately characterized as an employee grievance concerning internal office policy. The limited First Amendment interest involved here does not require that Connick tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships. Myers’ discharge therefore did not offend the First Amendment. We reiterate, however, the caveat we expressed in Pickering,
Our holding today is grounded in our longstanding recognition that the First Amendment’s primary aim is the full protection of speech upon issues of public concern, as well as the practical realities involved in the administration of a government office. Although today the balance is struck for the government, this is no defeat for the First Amendment. For it 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. The judgment of the Court of Appeals is
Reversed.
Questionnaire distributed by respondent on October 7, 1980.
PLAINTIFFS EXHIBIT 2, App. 191
“PLEASE TAKE THE FEW MINUTES IT WILL REQUIRE TO FILL THIS OUT. YOU CAN FREELY EXPRESS YOUR OPINION WITH ANONYMITY GUARANTEED.
******************************
1. How long have you been in the Office? _
2. Were you moved as a result of the recent transfers?_
3. Were the transfers as they effected [sic] you discussed with you by any superior prior to the notice of them being posted? _
4. Do you think as a matter of policy, they should have been?__ _
5. From your experience, do you feel office procedure regarding transfers has been fair? _
Do you believe there is a rumor mill active in the office? 05
If so, how do you think it effects [sic] overall working performance of A.D.A. personnel? _ -3
If so, how do you think it effects [sic] office morale?_ 00
Do you generally first learn of office changes and developments through rumor? _ CO
Do you have confidence in and would you rely on the word of: O
Bridget Bane_
Fred Harper _
Lindsay Larson_
Joe Meyer __
Dennis Waldron _
Do you ever feel pressured to work in political campaigns on behalf of office supported candidates? __ I — » l — i
Do you feel a grievance committee would be a worthwhile addition to the office structure? - CM rH
14. Please feel free to express any comments or feelings you have. _
THANK YOU FOR YOUR COOPERATION IN THIS SURVEY.”
Notes
Myers’ opposition was at least partially attributable to her concern that a conflict of interest would have been created by the transfer because of her participation in a counseling program for convicted defendants released on probation in the section of the criminal court to which she was to be assigned.
The questionnaire is reproduced as an Appendix to this opinion.
Petitioner has also objected to the assessment of damages as being in violation of the Eleventh Amendment and to the award of attorney’s fees. Because of our disposition of the case, we do not reach these questions.
See Perry v. Sindermann,
The question of whether expression is of a kind that is of legitimate concern to the public is also the standard in determining whether a common-law action for invasion of privacy is present. See Restatement (Second) of Torts § 652D (1977). See also Cox Broadcasting Corp. v. Cohn,
See, Clark v. Holmes,
The inquiry into the protected status of speech is one of law, not fact. See n. 10, infra.
This is not a case like Givhan, where an employee speaks out as a citizen on a matter of general concern, not tied to a personal employment dispute, but arranges to do so privately. Mrs. Givhan’s right to protest racial discrimination — a matter inherently of public concern — is not forfeited by her choice of a private forum.
See Brief for Respondent 9 (“These factors, including the degree of the ‘importance’ of plaintiff’s speech, were proper considerations to be weighed in the Pickering balance”); Tr. of Oral Arg. 30 (counsel for respondent) (“I certainly would not disagree that the content of the questionnaire, whether it affects a matter of great public concern or only a very narrow internal matter, is a relevant circumstance to be weighed in the Pickering analysis”).
“The Constitution has imposed upon this Court final authority to determine the meaning and application of those words of that instrument which require interpretation to resolve judicial issues. With that responsibility, we are compelled to examine for ourselves the statements in issue and the circumstances under which they [are] 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.” Pennekamp v. Florida,
Because of this obligation, we cannot “avoid making an independent constitutional judgment on the facts of the ease.” Jacobellis v. Ohio,
Waldron testified that from what he had learned of the events on October 7, Myers “was trying to stir up other people not to accept the changes [transfers] that had been made on the memorandum and that were to be implemented.” App. 167. In his view, the questionnaire was a “final act of defiance” and that, as a result of Myers’ action, “there were going to be some severe problems about the changes.” Ibid. Connick testified that he reached a similar conclusion after conducting his own investigation. “After I satisfied myself that not only wasn’t she accepting the transfer, but that she was affirmatively opposing it and disrupting the routine of the office by this questionnaire. I called her in. . . [and dismissed her].” Id., at 130.
Cf. Perry Education Assn. v. Perry Local Educators’ Assn.,
The record indicates that some, though not. all, of the copies of the questionnaire were distributed during lunch. Employee speech which transpires entirely on the employee’s own time, and in nonwork areas of the office, bring different factors into the Pickering calculus, and might lead to a different conclusion. Cf. NLRB v. Magnavox Co.,
The violation of such a rule would strengthen Connick’s position. See Mt. Healthy City Board of Ed. v. Doyle,
Dissenting Opinion
with whom Justice Marshall, Justice Blackmun, and Justice Stevens join, dissenting.
Sheila Myers was discharged for circulating a questionnaire to her fellow Assistant District Attorneys seeking information about the effect of petitioner’s personnel policies on employee morale and the overall work performance of the District Attorney’s Office. The Court concludes that her dismissal does not violate the First Amendment, primarily because the questionnaire addresses matters that, in the Court’s view, are not of public concern. It is hornbook law, however, 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. Mills v. Alabama,
The Court correctly reaffirms the long-established principle that the government may not constitutionally compel persons to relinquish their First Amendment rights as a condition of public employment. E. g., Keyishian v. Board of Regents,
The balancing test articulated in Pickering comes into play only when a public employee’s speech implicates the government’s interests as an; employer. When public employees engage in expression unrelated to their employment while away from the workplace, their First Amendment rights are, of course, no different from those of the general public. See id., at 574. Thus, whether a public employee’s speech addresses a matter of public concern is relevant to the constitutional inquiry only when the statements at issue — by virtue of their content or ¡the context in which they were made— may have an adverse impact on the government’s ability to perform its duties efficiently.
The Court’s decision today is flawed in three respects. First, the Court distorts the balancing analysis required under Pickering by suggesting that one factor, the context in which a statement is made, is to be weighed twice — first in
II
The District Court summarized the contents of respondent’s questionnaire as follows:
“Plaintiff solicited the views of her fellow Assistant District Attorneys on a number of issues, including office transfer policies and the manner in which information of that nature was communicated within the office. The questionnaire also sought to determine the views of Assistants regarding office morale, the need for a grievance committee, and the level of confidence felt by the Assistants for their supervisors. Finally, the questionnaire inquired as to whether the Assistants felt pressured to work in political campaigns on behalf of office-supported candidates.”507 F. Supp. 752 , 758 (ED La. 1981).
After reviewing the evidence, the District Court found that “[t]aken as a whole, 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.” Ibid. The Court of Appeals affirmed on the basis of
The standard announced by the Court suggests that the manner and context in which a statement is made must be weighed on both sides of the Pickering balance. It is beyond dispute that how and where a public employee expresses his views are relevant in the second half of the Pickering inquiry — determining whether the employee’s speech adversely affects the government’s interests as an employer. The Court explicitly acknowledged this in Givhan v. Western Line Consolidated School District,
The Court seeks to distinguish Givhan on the ground that speech protesting racial discrimination is “inherently of public concern.” Ante, at 148, n. 8. In so doing, it suggests that there are two classes of speech of public concern: statements “of public import” because of their content, form, and con
“[S]peech concerning public affairs is more than self-expression; it is the essence of self-government. ” Garrison v.
We have long recognized that one of the central purposes of the First Amendment’s guarantee of freedom of expression is to protect the dissemination of information on the basis of which members of our society may make reasoned decisions about the government. Mills v. Alabama,
Unconstrained discussion concerning the manner in which the government performs its duties is an essential element of the public discourse necessary to informed self-government.
“Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes.” Mills v. Alabama, supra, at 218-219 (emphasis added).
In Pickering we held that the First Amendment affords similar protection to critical statements by a public school teacher directed at the Board of Education for whom he worked.
“Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.” Id., at 572.
See also Arnett v. Kennedy,
The Court’s adoption of a far narrower conception of what subjects are of public concern seems prompted by its fears that a broader view “would mean that virtually every remark — and certainly every criticism directed at a public official — would plant the seed of a constitutional case.” Ante, at 149. Obviously, not every remark directed at a public official by a public employee is protected by the First Amendment.
The Court’s decision ignores these precepts. Based on its own narrow conception of which matters are of public concern, the Court implicitly determines that information con
Although the Court finds most of Myers’ questionnaire unrelated to matters of public interest, it does hold that one question — asking whether Assistants felt pressured to work in political campaigns on behalf of office-supported candidates — addressed a matter of public importance and concern. The Court also recognizes that this determination of public interest must weigh heavily in the balancing of competing interests required by Pickering. Having gone that far, however, the Court misapplies the Pickering test and holds— against our previous authorities — that a public employer’s mere apprehension that speech will be disruptive justifies suppression of that speech when all the objective evidence suggests that those fears are essentially unfounded.
Pickering recognized the difficulty of articulating “a general standard against which all . . . statements may be judged,”
The District Court weighed all of the relevant factors identified by our cases. It found that petitioner failed to establish that Myers violated either a duty of confidentiality or an office policy.
The Court accepts all of these findings. See ante, at 151. It concludes, however, that the District Court failed to give adequate weight to the context in which the questionnaire was distributed and to the need to maintain close working relationships in the District Attorney’s Office. In particular, the Court suggests the District Court failed to give sufficient weight to the disruptive potential of Question 10, which asked whether the Assistants had confidence in the word of five named supervisors. Ante, at 152. The District Court, however, explicitly recognized that this was petitioner’s “most forceful argument”; but after hearing the testimony of four of the five supervisors named in the question, it found that the question had no adverse effect on Myers’ relationship with her superiors.
Such extreme deference to the employer’s judgment is not appropriate when public employees voice critical views concerning the operations of the agency for which they work. Although an employer’s determination that an employee’s statements have undermined essential working relationships must be carefully weighed in the Pickering balance, we must bear in mind that “the threat of dismissal from public employment is ... a potent means of inhibiting speech.” Pickering,
In this regard, our decision in Tinker v. Des Moines Independent Community School District,
“In order for the State ... to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.” Id., at 509 (emphasis supplied) (quoting Burnside v. Byars,363 F. 2d 744 , 749 (CA5 1966)).
Because the speech at issue addressed matters of public importance, a similar standard should be applied here. After reviewing the evidence, the District Court found that “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.”
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. As a result, the public will be deprived of valuable information with which to evaluate the performance of elected officials. Because protecting the dissemination of such information is an essential function of the First Amendment, I dissent.
Although the Court’s opinion states 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,” ante, at 146 (footnote omitted), I do not understand it to imply that a governmental employee’s First Amendment rights outside the employment context are limited to speech on matters of public concern. To the extent that the Court’s opinion may be read to suggest that the dismissal of a public employee for speech unrelated to a subject of public interest does not implicate First Amendment interests, I disagree, because our cases establish that public employees enjoy the full range of First Amendment rights guaranteed to members of the general public. Under the balancing test articulated in Pickering, however, the government’s burden to justify such a dismissal may be lighter. See n. 4, infra.
Although the parties offered no evidence on whether the subjects addressed by the questionnaire were, in fact, matters of public concern, extensive local press coverage shows that the issues involved are of interest to the people of Orleans Parish. Shortly after the District Court took the case under advisement, a major daily newspaper in New Orleans carried a 7-paragraph story describing the questionnaire, the events leading to Myers’ dismissal, and the filing of this action. The Times-Picayune/The States-Item, Dee. 6, 1980, section 1, p. 21, col. 1. The same newspaper also carried a 16-paragraph story when the District Court ruled .in Myers’ favor, Feb. 11, 1981, section 1, p. 15, col. 2; a 14-paragraph story when the Court of Appeals affirmed the District Court’s decision, July 28, 1981, section 1, p. 11, col. 1; a 12-paragraph story when this Court granted Connick’s petition for certiorari, Mar. 9,1982, section 1, p. 15, col. 5.; and a 17-paragraph story when we heard oral argument, Nov. 9, 1982, section 1, p. 13, col. 5.
In addition, matters affecting the internal operations of the Orleans Parish District Attorney’s Office often receive extensive coverage in the same newspaper. For example, The Times-Picayune/The States-Item carried a lengthy story reporting that the agency moved to “plush new offices,” and describing in detail the “privacy problem” faced by Assistant District Attorneys because the office was unable to obtain modular furniture with which to partition its new space. Jan. 25,1981, section 8, p. 13, col. 1. It also carried a 16-paragraph story when a committee of the Louisiana State Senate voted to prohibit petitioner from retaining a public relations specialist. July 9, 1982, section 1, p. 14, col. 1.
In light of the public’s interest in the operations of the District Attorney’s Office in general, and in the dispute between the parties in particular, it is quite possible that, contrary to the Court’s view, ante, at 148-149, Myers’ comments concerning morale and working conditions in the office would actually have engaged the public’s attention had she stated them publicly.
Perhaps the simplest example of a statement by a public employee that would not be protected by the First Amendment would be answering “No” to a request that the employee perform a lawful task within the scope of his duties. Although such a refusal is “speech,” which implicates First Amendment interests, it is also insubordination, and as such it may serve as the basis for a lawful dismissal.
Indeed, it has been suggested that “a classification that bases the right to First Amendment protection.on some estimate of how much general interest there is in the communication is surely in conflict with the whole idea of the First Amendment.” T. Emerson, The System of Freedom of Expression 554 (1970). The degree to which speech is of interest to the public may be relevant in determining whether a public employer may constitutionally be required to tolerate some degree of disruption resulting from its utterance. See ante, at 152. In general, however, whether a government employee’s speech is of “public concern” must be determined by reference to the broad conception of the First Amendment’s guarantee of freedom of speech found necessary by the Framers
“to supply the public need for information and education with respect to the significant issues of the times. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.” Thornhill v. Alabama,310 U. S. 88 , 102 (1940) (footnote omitted).
See Wood v. Georgia,
The Court’s narrow conception of which matters are of public interest is also inconsistent with the broad view of that concept articulated in our cases dealing with the constitutional limits on liability for invasion of privacy. In Time, Inc. v. Hill,
“The guarantees for speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government. One need only pick up any newspaper or magazine to comprehend the vast range of published matter which jxposes persons to public view, both private citizens and public officials. . . . ‘Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.’ Thornhill v. Alabama,310 U. S. 88 , 102. ‘No suggestion can be found in the Constitution that the freedom there guaranteed for speech and the press bears*166 an inverse ratio to the timeliness and importance of the ideas seeking expression.’ Bridges v. California,314 U. S. 252 , 269.”385 U. S., at 388 .
The quoted passage makes clear that, contrary to the Court’s view, ante, at 143, n. 5, the subjects touched upon in respondent’s questionnaire fall within the broad conception of “matters of public interest” that defines the scope of the constitutional privilege in invasion of privacy cases. See Restatement (Second) of Torts § 652D, Comment j (1977):
“The scope of a matter of legitimate concern to the public is not limited to ‘news,’ in the sense of reports of current events or activities. It extends also to the use of names, likenesses or facts in giving information to the public for purposes of education, amusement or enlightenment, when the public may reasonably be expected to have a legitimate interest in what is published.”
