*1 v. NATIONAL TREASURY UNITED STATES et al. EMPLOYEES UNION et al. February Argued November 1994 Decided
No. 93-1170. *3 Kennedy, Court, J., in which opinion of the Stevens, delivered J., JJ., O’Connor, opin- an Breyer, filed Ginsburg, joined. Souter, and part, post, 480. p. dissenting in part judgment and concurring in the ion Thomas, and J., in which Scalia Rehnquist, dissenting opinion, C. filed a JJ., joined, post, p. 489. Deputy Bender argued General Solicitor the cause for Gen- on the briefs were Solicitor With him United States. Hunger, Attorney Days, R. Michael General eral Assistant Hoyle, Mollin. Dreeben, John C. Alfred Gregory O’Duden for the cause argued respondents. Kaplan, Barbara A. were Elaine With him on the brief Wagner, Vanderstar, Ste Atkin, Roth, Mark D. Anne John * R, Spitzer. Shapiro, B. ven and Arthur * Stephen Hardy and W. Callcott filed a brief for Common Cause F. Black as amicus curiae urging reversal. curiae amici urging Briefs of affirmance were filed for Freedom Rich, Smith, Ennis, Paul M. Bruce J. al. R. Bruce by Read et Foundation
Jr., Ottinger; Carpenter, Mincberg, M. and Lawrence S. Julie Elliot M. Morrison; B. Citizen, Inc., Alan by for for the Senior Executives Public Shaw, Jr., Bransford; George J. and William L. Association and for by Stephen S. Ostrach. Peter Bollen opinion of the Court. delivered
Justice Stevens broadly prohibits Congress fed- a law that enacted any compensation making accepting eral from speeches writing prohibition applies or The even articles. subject when neither the or article nor the any person group paying for it has connection with the employee’s official must decide whether that duties. We statutory prohibition comports with the Constitution’s com- “Congress abridging mand that no law shall make . . . speech.” freedom We hold that does not.
I every appointment In 1967 authorized the four years special Legislative, Executive, of a Commission on principal Salaries, Judicial whose function would be to rec- appropriate compensation top posi- ommend levels of for the tions all three branches of the Federal Government. Each of the first five Commissions recom- Quadrennial significant salary increases, mended but those recommenda- largely ignored. Report tions went of the 1989 Quad- leading rennial instrumental Commission, however, was to the 1989,1 enactment of the Ethics Reform Act of which provision challenged contains the in this case. report
The 1989 noted in- Quadrennial Commission’s salary flation had decreased the levels for senior Government *4 by approximately officials, dollars, measured in constant 35% report since 1969. The inadequate,
“also found that because their salaries are so many supplementing members of are their of- compensation by accepting ficial substantial of amounts (1988 V). §101 1 103 App. ed., Stat. 5 U. S. C. seq. Supp. et comprehensive 1989 statute is a amendment of the in Ethics Government Act of provisions Stat. 1824. The governing of the Act outside income, including honoraria, App. seq. are codified at 5 U. S. C. 501 et (1988 V). ed., Supp. meeting groups which de- with interest for
‘honoraria’ troubling Albeit to less sire their votes. to influence practice accepting honoraria also extends of extent, top and Judicial branches.” of Executive officials Report The 1989 Public Servants: Fairness for Our Legislative and Sala- Executive, on Judicial Commission 1988). (Dec. ries vi “salary
Accordingly, lev- recommended that the Commission top approximately at amount be set same els for officials in effect in and further in constant dollars” those abolishing legislation practice “Congress enact accepting in all branches.” Ibid. honoraria three on Federal Ethics Law Re-
The President’s Commission report subsequently the Quad- form issued endorsed The President’s Commission rennial Commission’s views. “by enacting receipt all a ban recommended on honoraria government.” officials all three branches and Report To Serve With Honor: of the President’s Commission 1989). (Mar. Explaining Law on Federal Ethics Reform proposal, the breadth of its it added: recognize, recommending ban, “In this also as did the we statutory Commission, that the definition Quadrennial enough present be honoraria must broad to— ‘close potential loopholes receipt consulting, profes- such as payments serving fees; boards; sional or similar for expenses sport, travel; or other entertainment not rea- sonably necessary any appearance involved; equivalent other that is benefit the substantial of an Ibid, (quoting honorarium.’” Fairness Public for Our 24). Servants,
Although adopted entirety, not their the two Commis- prominently sions’ recommendations echo Ethics Re- provided form Act of 1989. Section 703 of that Act a 25% pay Congress, judges, increase to Members of federal *5 high-level employees certain Executive Branch above the salary grade GS-15.2 See 103 Stat. 1768. Another sec- 501(b) § one at tion—the issue here—amended of the Ethics in Government Act of 1978 to create an “Honoraria Prohi- may any bition,” which “An reads: individual not receive honorarium while that is Member, individual a officer or employee.” Id., at 1760.
Section 505 of the Ethics Reform Act defined “officer or employee” nearly employees to include all of the Federal any Representative, Government and “Member” to include Delegate, Congress. or Resident Commissioner to The Con- gressional Operations Appropriations adopted 1992, Act, salary prohibition 1991,3extended both the increase and the against honoraria to the Senate. The 1989Act defined “hon- encompass any compensation paid orarium” to to a Govern- employee appearance, speech ment for “an or article.”4 The Appropriations Act amended that definition to exclude any appearances, speeches, series of or articles unrelated employee’s official duties or The definition now status. reads as follows:
“(3) payment The term ‘honorarium’ means a money any thing appearance, speech or value an Schedule, “GS,” The General pay abbreviated is the basic schedule for (1988 the Federal Government. 5 U. S. C. 5332 ed. and V). Supp. The Executive positions Branch to which gave the statute salary Schedule, increase are on separate the Executive pay scale above the General Schedule. See 103 Stat. 1768. (1988 V). §5318 3 105Stat. ed., Supp. C. note original “(3) definition read as follows: The term ‘honorarium’ payment
means a money any thing or appearance, speech value for an or by Member, article employee, officer excluding any or actual and nec essary expenses (and travel relative) by incurred such individual one the extent that expenses such paid by are any person, reimbursed other and the amount otherwise determined shall be reduced the amount of any expenses such to the extent expenses that such are paid not or reim bursed.” 103 Stat. 1762. *6 speeches, appearances, (including a series of
or article directly subject to the related matter is if the or articles payment is made be- or the duties official individual’s Government) by the status with the individual’s cause of excluding any employee, and actual officer or Member, a by expenses necessary such individual incurred travel relative) (and expenses are extent that such to the one by any person, amount paid other and the or reimbursed by be the amount shall reduced determined otherwise expenses expenses any the that such extent such 505(3) §App. paid C. or not reimbursed.” are (1988 V). Supp. ed., 503(2) provides Act of the Ethics Reform
Section statutory provisions governing honoraria for subject regula- to rules and be the Executive Branch shall (OGE) by and Ethics the Office of Government tions issued by agency designated CFR ethics officials. 5 administered (1994). permit §2636.201 regulations seq. reim- et OGE’s appearances, expenses with associated bursement of certain regulations speeches, The also confine and articles. using performance a Thus, reach of each of those terms. “an such skill or talent” is not an artistic, athletic or other delivering “appearance”; reading part play in a or a sermon “speech”; poetry, lyrics, “fiction, is not works of or (d). 2636.203(b), §§ script” regula- “article[s].” are not The permit teaching involving multiple presenta- tions a course program tions an accredited institution. Attorney may prohibition against General enforce the by penalty of
honoraria a civil action to recover a not more larger than or the $10,000 amount honorarium. good-faith employee accepted If an has an honorarium reli- opinion ance on an the ethics either OGE or officer of agency, employing subject penalty. her she is not to the civil (1988 V). §504 App. Supp. ed., U. S. C.
II Two unions employed and several career civil servants full departments time agencies various Executive filed suit in the United States District Court for the District of challenge constitutionality Columbia to of the honoraria stipulation ban. Pursuant to a Government, respondent District Treasury Court certified National Em- ployees representative as the composed Union of a class *7 employees grade all Executive Branch “below GS-16, who— 501(b) app. but for 5 U. S. C. receive as ‘honoraria,’ —would 505(3).” app. App. defined in 5 U. S. C. 124-125.5 All of respondents the individual save one are members of the exception grade lawyer class; the is a GS-16 for the Nuclear Regulatory published Commission who has articles about history. Russian respondents
Each alleges of the individual that he or she past compensation writing has in the speak- received ing topics compliance on various in full with earlier ethics regulations. The record contains a number of affidavits de- scribing respondents’ past activities that the honoraria ban prohibit. employed by would now A mail handler the Postal Arlington, Virginia, given Service had lectures on the religion payments for which he received small Quaker enough supplement my much, were “not but income in way aerospace Id., that makes a An difference.” at 47. engineer employed Space Flight at the Goddard Center in Maryland, history on Greenbelt, had lectured black for a fee per microbiologist A Id., lecture. at 63. at the $100 Food Drug per year and Administration had earned $3,000 almost writing making appearances articles and radio and television reviewing performances. Id., dance at 77. A tax examiner $11,903 employees (GS-1, in the certified class earned between 1) 10). $86,589 (1988 V). (GS-15, §5332 step ed., and step 5 U. S. C. Supp. OPM, According GS-9, the mean grade was which paid workers be $27,789 $36,123. tween and Office of Personnel Management, Demo 1992). Workforce, Profile of graphic the Federal App. p. (Sept. Ogden, Utah, Service employed Revenue the Internal environ- comparable pay about the for articles received had Id., at 67. ment. respondents’ sum- granted motion for District Court
The as insofar mary judgment, “unconstitutional held the statute employees United applies Branch to Executive enjoined en- from government,” the Government States employee. any against forcing Executive Branch the statute (1992). acknowledged that Supp. court 4, 13-14 788 F. integrity popu- promoting Congress’ of, “the interest government” respect is for, the federal in and confidence lar 501(b) characterized The court also Id., at 9. “vital.” “government restriction a content-neutral employment, have re- of their who, as a condition prerogatives Id., linquished Amendment ....” certain First “regulatory concluded that Nevertheless, the court having suppressing legislation of ex- effect of freedom “go slightest degree” than pression could no farther to the objective.” necessary accomplish The court its Ibid. because it restricts so overinclusive, statute both found the *8 prohibits speech, underinclusive, because it hono- much and Id., and not raria for some forms of others. 11. history Concluding legislative the that had from mainly appearances impropriety of been concerned about among application the court found the Members, its own 501(b) § parties to the before it severable from the remainder of the Act. (CADC Appeals
The 2d 1271 Court affirmed. F. 1993). 501(b) § though prohibits It that, noted even no speech, compensation places significant the denial of bur- employees. den on The court held that the Government’s strong, undisputed protecting integrity “in interest the efficiency public avoiding appear- service and in even the impropriety by practice ance of created abuse of the of re- ceiving justify honoraria” does not substantial burden on speech that Id., does not advance that interest. emphasized The court that the Government’s failure as to “some sort nexus between many respondents identify the and either the matter of the ex- job subject employee’s or the character of the undercut its pression payor” prof- Id., fered concern about actual or apparent improprieties. at 1275.6 the absence of evidence of either Stressing corrup- or the tion lower level fed- appearance corruption among eral honoraria with no connection to employees receiving their the Court of concluded that employment, Appeals Government had failed ban’s burden on their justify Id., at 1277. The court speech. rejected Government’s that administrative and enforcement difficulties argument 501(b)’s broad justify rule.7 prophylactic Appeals acknowledged plaintiffs Court of that “even some of the payments might eyebrow,” citing receive at least raise an a business payment analy editor for the Voice of America who received for business examining sis and a GS-7 “tax assistant” payment any whom might universality “[i]n honorarium raise some concern view of the of citi subjection 2d, zens’ to the Internal Revenue Service.” 990 F. at 1275- plaintiff 1276. Another expressive appear whose activities to come employment within a nexus to Treasury Employees’ Government is the itself, complains Union which honoraria ban has publica hindered chapters’ App. tion of its newsletters. 58-62. 7“As in testimony summarized before the Senate Committee on Govern Affairs, prior regulations mental long allowed honoraria so as the speaker or writer held a rank lower than GS-16 and all of following questions negatively: could be answered
“(1) Is the honorarium carrying government offered for out duties or activity for an specifically that focuses on the employing agency’s responsi- bilities, policies programs? “(2) government Is the honorarium employee offered to the family position by member because of the official employee? held “(3) Is the honorarium offered government because of the information being imparted? that is
“(4) Is the honorarium offered someone who does business with or *9 wishes to employee do business with the in his or her capacity? official “(5) any government Were resources or employee time used the to produce the materials for the article or or appearance? make the Rep. (1991). Cong., Sess., “S. No. 102d 1st at 8 While some of the (such may limits amorphous quality have an about them pur- as the one porting probe the offeror), motive of the appears honorarium’s there no Appeals remedy, question the Court of
Turning of the §501(b)’sapplication to agreed the District Court remain- employees from the is severable Branch Executive history legislative the convinced der of the statute. primarily adopted Congress ban honoraria had court that payments response growing to its concern about in disclosed the statute itself Members; moreover, own part package adopted of of a ban was “the honorarium salary sharp key ingredient increase was which a Congress, judges, of senior and a limited class members of omitted). (citation Id., at 1278 officials.” executive branch remedy effect, Accordingly, that, in the court fashioned by eliminating words “officer the statute rewrote 501(b) “except employee” as those terms en- so far from employees compass Congress, officers members of judicial employees.” Congress, judicial Id., at officers and 1279.8 petition Appeals dissents, denied a
Over two
the Court
(1993).
granted
rehearing
Ill spare publication who write their Federal significant marketplace time contributions to the have made literary giants They like Nathaniel Haw- ideas. include employed by Melville, thorne who and Herman were Service; Whitman, worked De- Customs Walt who for the experience difficulty, actual one can hypothesize rules of thumb that 2d, government could constrain discretion.” 990 F. at 1276-1277. dissent, Judge maintained that the statute Sentelle was constitu objected tional. remedy. opinion, major He also to the court’s In his ity’s statutory provisions relating severance of the to the Executive (cita 2d, Branch “nothing judicial legislation,” less was than 990 F. at 1296 quotation omitted), tion and internal marks and its reluctance to invalidate the honoraria ban as to Members would have “better been Id., by striking applied” served plaintiff statute down as to the class.
465 partments of Interior; Justice and and Bret an em- Harte, ployee Respondents yet compa- of the mint.9 have to make they rable contributions culture, to American but share with great important these artists characteristics that are rele- vant to the issue we confront. though respondents they
Even work for Government, the relinquished rights they have not “the First Amendment enjoy would otherwise as citizens to comment on matters of public Pickering Township interest.” v. Board Ed. of (1968). High Cty., School Dist. 391 Will U. S. They compensation expressive seek their for activities in capacity employees. their as citizens, not as Government They employment bearing claim their status has no more quality literary output the or market value of their than it exceptions, did on that of Hawthorne or Melville. With few respondents’ messages nothing the content of has to do with jobs arguably any their and does not even have adverse impact efficiency they on the of the offices which work. They composed do not address audiences of co-workers or supervisors; they speak segments instead, write or general public. Neither character of the authors, subject expression, matter of their effect the con- expression tent of their on their official duties, nor the kind they any of audiences address has relevance to their employment. Pickering recog- and a number of other cases we have Congress may impose
nized job-related restraints on the public employees plainly that would be unconstitu- applied public large. tional if g., Snepp See, e. (1980). United States, 444 U. S. 507 When a court is re- quired validity to determine the of such a restraint, it must “arrive at a balance [employee], between the interests of Turner, See A. Nathaniel Biography Hawthorne: A (1980); 170-187 Arvin, N. (1950); Herman Allen, Melville 259-260 G. Solitary Singer: A Biography Critical 319-321, Walt (1985); Whitman Merwin, H. (1911). The Life of Bret Harte 33-34 public commenting upon concern matters citizen,
as a promoting employer, in an State, as interest of the and the through performs its efficiency public services *11 Pickering, S., at 568. employees.” 391 U. disciplinary ac- usually involved have cases, which
In such speech, employee’s government response to a taken tions only balancing Pickering’s when the applied test have we public upon con- spoke of employee matters “as a citizen only upon employee of matters than “as an cern” rather interest,” Myers, 138, 147 461 S.U. personal v. Connick added). (1983) speech private that involves (emphasis Thus, employ- change complaint in the nothing a more a about than imposing discipline may give without rise to own duties ee’s government em- justification any special on the burden of speech in- the does ployer. If, however, Id., at 148-149. government the public bears concern, the a matter of volve employment justifying Ran- action. its adverse burden (1987);10 also Waters see McPherson, 483 S. 388 kin v. U. (1994). expres- Respondents’ Churchill, 661,674
v. protected category the in this case fall within activities sive public rather than concern comment on matters of of citizen personal employee status related to comment on matters they workplace. speeches re- for which The and articles the public compensation past a in the were addressed to ceived workplace, and involved audience, were made outside the employment. largely unrelated to their Government content 501(b) sweep burden The makes the Government’s heavy. Pickering progeny, and its this case does not Unlike
10 Pickering Rankin is the directly applied only case in which we nothing workplace. with the balance to whose content had to do workplace employee in that was fired based on a statement case that the state attempt about an assassination on the President. Satisfied President, not kill which the First Amendment ment was a threat protected, not have would we concluded that the statement involved public firing matter concern and that the violated the First Amendment. 386-387, 483 U. 392.
467
hoc
involve a
of one
and its
post
analysis
employee’s speech
on that
Cf. Wa-
impact
employee’s public responsibilities.
Churchill,
ters v.
McPherson,
Rankin v.
11The dissent seems to the honoraria ban as less onerous than regard Pickering our of to the of individual be applications speech employees the ban “is unrelated to the or the message viewpoint expressed by cause Post, Pickering at 500. Our cases government employee.” only per mit the Government to take adverse action based on employee speech State, has adverse on “the interest of the as an in employer, pro effects efficiency of the it moting public performs through employ services its S.,U. That messages may likely ees.” 391 certain be more than others to have such adverse effects does not render Pickering’s restriction in favor on based. speech viewpoint persistent advocacy Even a teacher’s ibid., board, the actions of the school cf. or an exhortation employee’s of McPherson, against cf. Rankin v. life, attempt an on the President’s 483 (1987), U. S. 378 could if the provide proper grounds adverse action employer could demonstrate that government expression disrupted such workplace efficiency. The honoraria ban as bur applied respondents far our Pickering speech past dens more than of because the applications uttered, quantity speech ban deters an enormous of before it is based only on that the speculation speech might threaten the Government’s interests. 12 a Pickering Two decades three-Justice invoked ago, plurality against course of and upholding vagueness challenges provi overbreadth a 7501(a) (1970 Act, ed.), § sion of the Follette Lloyd-La C. that al lowed the discharge certain federal for such cause employees “only
468 validity stronger presumption normally a accord
We executive’s judgment an individual congressional than to Broadcasting System, Inc. disciplinary Turner See action. (1994) (Stevens, J., con- 2 622, 671, and n. FCC, U. S. v. curring judgment). concurring wide- part gives however, rise to impact ban, spread honoraria of the any single supervisory than could concerns far more serious City 43, 54-55 Gilleo, 512 U. S. Ladue v. See decision. (1994).13 in re- action taken an adverse addition, unlike potential speech, be- sponse ban chills this to actual Olson, rel. happens. Minnesota ex Near v. Cf. fore (1931). bur- reasons, the Government’s these For U. S. 697 statutory respect on greater restriction to this with den is disciplinary respect ac- expression to an isolated than interests of both that the must show The Government tion. group present future potential a vast audiences and expression range present and future in a broad “necessary impact expression’s outweighed by on are Pickering, operation” of the Government. the actual S., at 571. U. 501(b) any speech prohibits
Although nor dis- neither among speakers or view- on the content based criminates compensation messages, prohibition point its of their expressive imposes significant unquestionably burden on activity. N. Schuster, Members Y. Simon & Inc. v. See Kennedy, promote efficiency will service.” Arnett [civil] *13 (1974). 134, case stood accused of sev- plaintiff U. S. 160-161 in that misdeeds, defamatory including making eral false and state- work-related against plurality employee’s ments co-workers. The characterized superiors accepted protected false accusation that his had a bribe as “not Id., Thus, plurality the First the Arnett Amendment.” at 158-159. merely Pickering support general post application cited a statute’s hoc single employee’s arguably unprotected speech. to a 13 30,1992, 1,680,516 September employed As of the Federal Government grades Manage workers between GS-1 and GS-15. Office of Personnel ment, Workforce, Demographic 2, (Sept. App. p. Profile of the Federal 79 1992).
469 Bd., State Crime Victims Ar- (1991); 502 105 U. S. see also Project, Ragland, kansas Writers’ Inc. 221, U. S. 227- Minneapolis Star & Tribune Co. v. Minnesota 231 (1987); Revenue, Comm’r (1983). S. 575 Publishers com- U. authors because a pensate compensation provides significant incentive toward more expression.14 By denying respond- ents that incentive, the honoraria ban induces them to curtail their if wish to continue for expression they working Government.15
The ban a far more burden on imposes significant respond- ents than on the small of lawmakers relatively group whose of honoraria past receipt motivated its The ab- enactment. and sorbing time-consuming responsibilities legislators executives leave them policymaking little opportunity for research or creative expression subjects unrelated to their official officials responsibilities. Such often receive in- vitations to and talk about appear subjects related to their work because of their official identities. In contrast, invita- tions to rank-and-file employees usually depend on the only market value of their The honoraria ban messages. is un- to reduce likely the number of significantly appearances by officials as as travel high-ranking long expense reimburse- ment for the and one relative is speaker available as an supra, alternative form of remuneration. See at In 460. proposition This is fully self-evident even to those who accept do not “ cynical Samuel Johnson’s comment: wrote, ‘No man but a blockhead ever except money.’” Boswell, (R. for J. Life of Samuel Johnson LL. D. 302 1952). Hutchins ed. respondents Several compel indicated that ban would them to dis continue previously their compensated 46, expressive activities. App. 50-51,55, 69, 74. case, at least one newspaper refused to continue publishing respondent’s Id., work accept if he could pay not for it. at Despite 78. regulations’ the OGE provision recovery of certain ex penses expressive related to supra, activity, see respond several reported ents also that the ban prevent complicate would their recover ing necessary other expenses, creating a further speak disincentive to 45-46, App. 55-56, 65, write. 74-75, 81, 84, 88.
470 nonpol- for lower paid,
contrast, compensation the denial their expres- diminish will inevitably icymaking sive output. ex- employees’ to Government disincentive
The large-scale on the public’s burden a significant also imposes pression otherwise would what the employees and hear to read right Pharmacy Virginia Bd. v. and said. See written have Inc., 425 Council, Virginia 748, Consumer U. S. Citizens true cost to measure the (1976). have no way We 756-757 risk that it might the we cannot burden, ignore of that but Hawthorne.16 Melville or of a future us of the work deprive that abridges kind of burden the The honoraria ban imposes First Amendment. under the speech
IV this at issue in of the vast majority Because the em- matter of Government subject case does not involve Govern- outside workplace, and takes place ployment 501(b) of immediate § on the grounds ment is unable justify Pickering and the cases asserted in disruption workplace g., Waters, e. In- S., at 664. 511 U. Cf., followed it. the ban comports submits stead, Government were honoraria the First Amendment because prohibited effi- to interfere with the deemed by Congress “reasonably Mitchell, service.” Public Workers ciency public (1947). Mitchell Act, Hatch we prohibition upheld all classi- 7324(a)(2), political activity by U. S. C. partisan me- fied federal a skilled including, example, employees, would ban These authors’ familiar masterworks survive the honoraria books, currently exempting regula all administered. Besides the OGE infra, protect poetry coverage, tions fiction and from the ban’s see although language great the statute’s is not so clear. But artists deal in g., fiction, See, Allen, e. fact as well as and some deal in both. The Soli tary Singer, (discussing speeches at 41-55 Walt Whitman’s nonfiction newspaper writing). *15 policymaking
chanic at the mint named Poole who had no authority. explained “[t]here of thou- We that are hundreds employees positions no more in- sands of United States policy upon fluential determination than that of Mr. Poole. Evidently Congress what feared was the cumulative effect activity by employee political employees on morale of all who participate actively.” S., could be induced to 330 U. Carriers, Letter 548 Civil Service Comm’n v. U. S. (1973), we noted that enactment of the Hatch Act rapidly expanding reflected “the conviction that the Govern- employed powerful, ment work force should not be to build a perhaps corrupt political Id., invincible, and machine.” at equally important An 565. concern was goal employment “to further serve the and ad- depend po- vancement in the service not Government performance, litical and at the same time to make sure employees pres- that Government would be free from express sure and from or tacit invitation to vote in a way perform political curry certain chores in order to superiors favor with their rather than to act out their Id., own at beliefs.” 566. protect employees’ rights,
Thus, the Hatch Act aimed notably right expression, their to free rather than to restrict rights.17 those Like Act, the Hatch the honoraria ban af- employees. fects hundreds of thousands of federal Unlike partisan political activity, hardly appear however, honoraria employees’ liberty. to threaten morale or Moreover, Con- gress effectively designed the Hatch Act to combat demon- employees’ partisan politi- strated ill effects of Government cal activities. In contrast, has Government failed to by applying show how it serves the interests it asserts respondents. honoraria ban to
17 Arnett, Cf. 416 U. (Lloyd-La at 159 purpose Follette Act’s was “to give myriad different employees federal performing widely disparate job tasks common protection”). standard concern is that federal offi-
The Government’s underlying cers not misuse or to misuse com- appear power by accepting for their unofficial and writing pensation nonpolitical activities. This interest is undeniably powerful, speaking but the cites no evidence of misconduct related Government in the vast rank and file of federal to honoraria “cumu- below GS-16.18 Instead of a concern about the grade lative effect” of a deemed widespread practice service,” “menace the and the integrity competency Mitchell, relies here on S.,U. Government *16 limited evidence of actual or apparent impropriety by legisla- executives, tors and with the high-level together purported administrative costs of or lower level em- avoiding detecting violations of established ployees’ policies.
As both the District Court and the of Court Appeals noted, the Government has based its defense on of the ban abuses 2d, of honoraria Members of at by F. Congress. (GAO) report The Government cites a of the Accounting General Office support to necessary prevent its assertion that the ban is widespread to improprieties. Office, Accounting Report Chairman, General to the Sub Services, committee on Federal Post Office and Civil Service of the Senate Affairs, Committee on Employee Governmental Conduct Standards: Some (Feb. 1992) (herein Outside Activities Present Conflict-of-interest Issues Report); after GAO see Brief for United States Report 22-23. The GAO found that ethics large agencies officials at several approved had 545 out speaking side activities between 1988 and 1990. Report GAO 8. Over approved one-third of the total subject matter, activities dealt with or duties, Id., involved employees’ similar to the Government work. at 58. Report’s GAO conclusions and exclusively recommendations dealt with problems of outside activities “that were specifically focused agencies’ responsibilities and/or directly related employees’ du Id., ties.” at 13-14. The Report’s examples GAO gave instances that rise to serious concerns apparent about real or impropriety were two cases (a high-level in which physicist) chemist and a engaged in con sulting Id., subject activities related to matter jobs. of their pages Its 112 contain not any one mention of apparent real or impropriety related to a employee lower level any or to employee engaged writing speaking or or any conduct unrelated to his or her job. Government 1278; 788 F. at Supp., 13.19 could as- Congress reasonably sume to judges honoraria or payments high-ranking officials the Executive Branch might a similar generate influence. could appearance improper not, how- ever, extend reasonably to all federal assumption em- GS-16, below grade an immense class of ployees workers power to confer favors on negligible those who might to hear them or read their A pay speak articles. federal as a such at employee, mint, mechanics supervisor impair and morale might efficiency using criteria political her judge his or But one performance staff. can harm, envision scant of harm, from appearance resulting the same to lecture on the employee’s pay accepting Quaker or to write religion dance reviews. is
Although vital operational efficiency undoubtedly gov- g., Rankin, e. interest, ernmental S., 483 U. at several fea- tures the honoraria text ban’s cast serious doubt on the Gov- ernment’s submission that Congress perceived honoraria as so to the threatening efficiency entire federal service as to render the ban a reasonable to the threat. Cf. response Waters, U. 677-678. The first is the rather strange “a parenthetical reference to series of appearances, speeches, *17 or articles” the that 1991 amendment inserted the defini- tion the term “honorarium.” The amended definition ex- cludes such a series from the prohibited unless “the category matter is subject related the to individual’s directly official duties or the made is because of the payment individual’s supra, status the Government.” See In other words, accepting pay for a series of articles prohibited if, is if, and only a nexus exists between the author’s employment and either the subject matter of the or expression the iden- 19Portending reliance, this primary the discussion of honoraria the Quadrennial Report appeared subtopic Commission’s as a in the “Legislative Branch” section. Fairness Our for Public Servants: The Report of The Executive, on Legislative Commission and Judicial (Dec. 1988). Salaries speech, in or
tity payor. an individual article For of the subject matter nor pay if even neither is taboo contrast, any relationship author’s duties. at all to the payor bears exemption provide all for un- Congress’ a total to decision application speeches ban undermines series of related speeches with no nexus to Govern- articles individual to corrupt bargain employment. nexus, no such a Absent ment likely. appears impropriety appearance Gov- or even against general only argument nexus limitation ernment’s prophylactic is enforce than rule easier is that a wholesale requires See nexus determinations. individual one that for limitation se- The nexus for United States 21-23. Brief congressional judg- unambiguously reflects a however, ries, agency OGE can enforce officials that ethics ment A burden nexus test. blanket when includes a the statute nearly speech re- 1.7 million federal on justification quires stronger than Government’s a much convenience. of administrative dubious claim expressive ac- limitation of “honoraria” The definition’s submission that tivities also undermines Government’s necessary §501 reasonably protect the is the breadth of efficiency public that Both rec- service. Commissions importance defining the ban stressed the hono- ommended loopholes way “potential such as raria in a would close payments receipt consulting, professional fees; or similar sport, serving or other entertainment boards; travel; for reasonably necessary appearance expenses for the in- not equivalent any or is the substantial volved; other benefit that supra, Those of an honorarium.” See recommenda- 458. judgment compensation tions reflected a considered greater appearance, poses danger “an or article” no compensation than for other services that Government em- ployee might perform spare Congress, in his her time.20 *18 heavily reports Quadrennial both Government relies on the 501(b). § defending Commission and the President’s Commission in See 3-5, Brief for United States 19-20. only expressive
however, chose to restrict activities. One might reasonably argue expressive activities, because they occupy position a favored in the constitutional firma- exempt comprehensive ment, should be from even a ban on Imposing greater speech outside income. a burden on than off-duty pose on other activities assumed to threat same efficiency is, to the of the federal service at best, anomalous. § singles expressive activity spe The fact that 501 out heightens regulation justifi cial the Government’s burden of Minneapolis Star, cation. See 460 U. at 583. As we reviewing noted last Term when the Federal Communica must-carry tions rules for cable television Commission’s “[w]hen regulation systems, on Government defends speech past prevent to redress harms or antici as means pated simply ‘posit it must do more than the existence harms, sought to be It must demonstrate of the disease cured.’ ... merely conjectural, not real, the recited harms are regulation that the will in fact alleviate these harms Broadcasting System, way.” a direct and material Turner regulation S., at That case dealt with a direct 512 U. 664. by private logic applies entities, of communication but its special imposes expressive well to the burden 501 on the rights of the multitude of it reaches. As Justice expression us, a burden Brandéis reminded “reasonable” justification stronger speculation requires a far than mere injury serious harms. “Fear of serious cannot alone about assembly. justify suppression speech of free feared Men justify suppression witches and burnt ... To women. ground speech free there must be reasonable to fear that speech practiced.” Whitney if serious evil will result free is (1927) (concurring opinion).21 357, 376 v. 274 U. S. California, consistently given greater government “[W]e have deference to pre justify employee dictions of harm used to restriction of than speech predictions justify of harm used restrictions on the of the public Churchill, (1994) Waters large.” (plurality opin ion). However, the cases which we have done so in- generally have *19 501(b) persuaded is a rea- us has not The Government posited response harms. to the sonable regulations that significance to the OGE attach We also “appearance, statutory coverage terms limit the (1994). regula- §2636.203 The speech article.” 5 CFR writings variety performances and exclude a wide tions normally appear with an em- no nexus to have that would writings, athletic ployee’sjob, and sermons, fictional such as countermanding supra, competitions, the Com- 460, at see hono- more inclusive that an even missions’ recommendation supra, appropriate. at 458. raria ban would be See agency and course, make the task of the OGE exclusions, of they the credi- easier, but “diminish ethics officialssomewhat paying bility lower level rationale” that of the Government’s jeopar- speech entirely employees unrelated to their work City efficiency the entire federal service. dizes the obligation recognize to defer at our Ladue, 512 U. 52. We congressional judgments about matters such to considered appearances impropriety, of this case but on the record weight powerful greater and realistic we must attach to the presumption that the federal work force consists of dedicated civil exclusions in the OGE honorable servants. The regulations presumption than are more consistent with that See, g., e. already happened. volved isolated instances of that had (1983). Myers, Connick v. 138, U. S. We 151-152 deferred Act, see Public Workers predictions upholding Government’s the Hatch Mitchell, (1947), employee- 330 U. S. 100-101 but that statute’s protective provided stronger justification proscriptive rationale much for a rule than workplace efficiency. does the Government’s interest See supra, Deferring speculation 470-471. to the Government’s about the pernicious speeches yet effects of thousands of articles and to be written unacceptably or delivered pro- would encroach on the First Amendment’s tections. Cf. Federal Election Comm’n v. National Conservative Politi- Comm., (statute cal Action (1985) restricting political “exchange political contributions violated First Amendment where fa- expenditures vors for uncoordinated hypothetical possibility remained] more”). nothing the honoraria ban’s dubious not application merely whose loss of honoraria was offset a salary policymakers, increase, but to all Executive Branch below grade GS-16 as well.
These anomalies in the text of the statute and regulations underscore our benefits the hono- speculative conclusion: raria ban the Government are not sufficient to may provide this crafted burden on freedom justify crudely respondents’ 501(b) to activities. Section violates engage expressive the First Amendment.
V 501(b) After invalid because it was not as care- holding been, tailored as should have of it Court fully Appeals is itself overinclusive. approved remedy arguably The relief the District Court and granted by upheld by Court of enforcement of the entire hono- Appeals enjoined raria ban as to entire Executive Branch of applied That Government.22 relief to senior ex- injunction provides ecutives who are not to this It case. also parties prohibits enforcement of the statute even when an obvious nexus ex- ists between the and either the mat- employee’s job subject ter of his or her or the of expression interest the person for it. As an alternative to its paying request outright reversal, the Government asks us modify judgment by the statute as it upholding first, to not applies, employees to this party and, second, action situations which a nexus is present.
For three reasons, we with the Government’s first agree suggestion relief should be limited to the parties —that before the First, Court. the occasional case re- although us to entertain a quires facial in order to challenge vindicate Appeals The Court of did not reach the applications ban’s to employees Legislative of the and Judicial analysis Branches because legisla its history that, tive convinced it had believed the ban unconstitu Branch, tional as to the Executive applied still would the ban to have 2d, the other branches. 990 F. party’s right not to be bound an unconstitutional stat g., Secretary Joseph ute, see, e. Md. State H. Munson (1984), Co., 947, 965-967, 467 U. S. and n. 13 we neither want provide nonparties nor need to relief to when a narrower remedy fully protect litigants. will See Board Trust ees State N. Fox, Univ. Y. v. 484-485 (1989). granting respondents— case, this full relief to employees grade who include all Executive Branch below require passing applicability GS-16—does not § on the 501(b) grade to Executive Branch GS-15, above including high-level employees those who received a 25% salary increase that offsets the honoraria ban’s disincentive speak conceivably Second, write. the Government might justification advance a different for an honoraria ban presenting limited to more officials, senior thus a different question today.23 constitutional than the one we decide Our *21 policy avoiding unnecessary adjudication of constitutional (1936) issues, see Ashwander TVA, 346-347 (Brandeis, concurring), against J., therefore counsels deter mining rights senior officials’ in this Third, case. as the Appeals recognized, remedy Court of required its it to tam per with practice the text of the statute,24 a we strive avoid. parties to whom the lower granted courts relief include single a supra, employee.
GS-16 See at 461. The rationale we have set forth for holding our does not necessarily apply However, to him. the Government request, does not part suggested of its outright reversal, alternative to that we reverse the Court of Appeals’ judgment as to that one employee. Accordingly, we leave part judgment of the court’s intact. 24The Court Appeals cannot, said: “We as a matter, technical achieve the intended simply by severance striking the words employee’ ‘officer or 501(b), § from as that would beyond invalidate the ban the executive branch. However, . . . given greater far congressional interest banning honoraria for legislative judicial branches, and we think it proper form of severance to strike employee’ 501(b) ‘officer or from except in so far as those encompass terms members of Congress, officers of Congress, judicial judicial officers and employees.” 2d, F. Our to avoid also obligation judicial legislation persuades us to second reject Government’s we suggestion —that a nexus modify remedy by crafting for the requirement honoraria ban. We cannot be sure that our to re attempt draft the statute to limit its to cases an coverage involving undesirable nexus between the official duties and speaker’s either the matter of the subject or the speaker’s expression identity would payor the nexus correctly identify Con would have in a gress more limited honoraria adopted ban. We cannot know whether reflected Congress accurately its sense of an nexus in the terse, 33-word appropriate paren thetical statement with which it series of exempted speeches and articles from the definition of honoraria in the 1992 supra, amendment, 460; see in an elaborate, 600- nearly word provision which it later exempted Department Defense school military students from the faculty ban;25 or in neither. The even process drawing nexus, proper more than the defense of the statute’s to senior application would raise employees, constitutional likely independent con cerns whose is adjudication to decide unnecessary this case. supra, Cf. at 478. We believe the Court Appeals properly left to the task of a narrower drafting statute.26 §542
25 See of the National Defense Authorization Act for Fiscal Year 1993,106 Stat. 2413-2414. 26The dissent condemns our Post, refusal to rewrite the statute. at 501- that, 503. It notes when we challenge considered a to a federal statute *22 expressive that banned displays in Supreme the building Court and on the public it, sidewalks around we difficulty striking had no down the statute only applied as it Grace, public to the See United States v. sidewalks. (1983). 171, 180-183 Drawing building a line between a sidewalks with which intimately familiar, we are based on settled First id., Amendment principles, 180, see is a relatively simple matter. contrast, drawing one or categories more lines between speech covered by overly statute, an broad when has signals sent inconsistent as to where the new line or drawn, lines should be involves a far more serious invasion legislative of the domain.
480 Appeals judgment of the as the Court of affirms
Insofar 501(b) against against injunction enforcement of re- the grants parties insofar as it relief to spondents, affirmed; it is case is remanded the it is reversed. The Court, not before opinion. proceedings consistent with this further is so
It ordered. in in the O’Connor, part Justice concurring judgment in part. and dissenting agree aspects of honoraria ban run
Although I the separately I for two Amendment, First write of the afoul understanding emphasize my I First, wish reasons. Pickering beginning Board precedents, with v. how our Cty., Township High Dist. 391 Will U. S. School Ed. of (1968), application, culminating in its most recent (1994), direct Court’s Churchill, 511 U. S. Waters express my disagreement write to Second, I conclusion. my paints remedy, which in view too with the Court’s a brush. broad
I recently applied Pickering balance, most The time-tested analysis governing provides framework for Waters, speech by government of restrictions all manner Pickering, must balance “the employer. Under Court commenting upon [employee], citizen, as a interests [govern- public and the interest of the concern matters efficiency pub- employer, promoting as an ment], performs through employees.” its 391 U. lic services prior decisions, of our this In contrast to some case pub- question is of presents whether the no threshold Respondents challenge merely private, concern. lic, applies speech bearing no nexus Gov- as it off-hour ban employment speech does not definition re- ernment — employee’s or the status as late to “internal officeaffairs” an (1983). Myers, employee. Cf. Connick v. U. S. *23 employees’ setting in case, out this interests meaningful between ex ante Court draws a distinction punish- prohibition speech post of certain kinds of the ex discrete, ante, at ment of unforeseeable disturbances. See observation, There is some force to the Court’s 466-468. post punishments, ante in ex rules, because ex contrast to carry of risks overinclusiveness and underinclusiveness. post Nevertheless, reliance on ex ante!ex distinction is case-by-case application Pickering. not a substitute for the many There are circumstances which the as Government employer likely prefer policies is to codification its as (which, workplace incidentally, provide rules to em- notice ployees) on-the-job the ad hoc, reactions that been have many employment fare in standard our In most cases. acting circumstances, such will Government be well within difference, its bounds. I see little constitutional for example, prohibiting employees being between a rule from supra, Waters, “‘rude see customers,’” at and the upbraiding sanctioning post employee of an hoc iso- impudence. lated acts To draw the line based on dis- post punishments, tinction ex between ante rules and ex my overgeneralizes view, and threatens undue interference government’s employer,” with “the mission as 511 U. 674.
Given the breadth and of the intrusiveness honoraria ban agree significant case, this however, I with the Court that weight placed employees’ must be on the side scale in Pickering recognized balance. We in Simon Schus & ter, Inc. v. Bd., Members N. Y. State Crime Victims (1991), imposition U. 105, 115 S. that the of financial burdens may speak. have a direct effect also incentives See Minneapolis Star & Tribune Co. v. Minnesota Comm’r of (1983)(observing Revenue, 460 U. S. that the threat operate effectively burdensome taxes “can as censor comment”). to check critical Although the ban honoraria certainly does not curtail all of the non-work-related *24 respondent it nearly class, of million members
of two the pub- speech of substantial on matters some inhibits doubtless impact my ban of the honoraria view, the lic interest. speaking employees’ in out as upon interests class of this gainsaid. employees, cannot be rather than citizens, categories in of interests two advances The Government First, the sub support Government of the honoraria ban. efficiency public promoting of service in the interests mits its avoiding impropriety appearance created of and in practice receiving have cred honoraria. We of of the abuse salutary significant objectives on sev as both ited these g., Na e. Election Comm’n v. See, Federal eral occasions. (1982); Right 197,210 First Comm., to tional Work U. n. Bellotti, v. S. Bank Boston Nat. (1976). Although (1978);Buckley Valeo, 1, 26-29 424 S. U. stop put support they efforts to lend to the Government’s speech, paid interests work-related these to honoraria for prohibits justifying honoraria a ban that have less force in wholly paid speech unrelated to work on matters Perhaps recognizing place. maintains this, the Government resisting its an in evasion of that it has additional interest According sparing to the rule and administrative resources. may apparently payments be made Government, innocuous difficulty distinguish purposes, for illicit and the inherent ing prophy from the a broad the innocuous illicit mandates lactic ban.
Balancing is
side
difficult
undertake unless one
relatively
argues
scale is
insubstantial.
Government
broadly
its
that the Court should defer
determination
outweigh
benefits
the ban
its costs. The Government
plurality
Waters,
relies on
in which a
of the Court observed
consistently
greater
gov-
given
have
that “we
deference to
predictions
justify
ernment
of harm used to
restriction of
speech
predictions
justify
employee
than to
of harm used to
public
large.”
restrictions on
S.,
at
511 U.
principle
plu-
limits,
But
673.
this
has its
as the Waters
rality
recognize.
magnitude
went on to
As
intrusion
employees’
does the
rises,
interests
so
Government’s bur-
(“[T]he
justification.
Connick,
Cf.
461 U.
at 150
den
justifying particular discharge
burden
varies
State’s
de-
expression”);
pending upon
employee’s
id.,
the nature of the
(finding
appropriate
degree
at 151-152
“a wide
of deference”
only
employee’s speech
peripherally
where
touched
on mat-
concern).
public
plurality
Waters,
Thus,
ters
noted
many
government may
“[i]n
such situations the
have
likely
showing
speech is,
make a
that the
in fact,
substantial
disruptive
may
punished.”
to be
be
atS.,
before
511 U.
*25
presents
This case
one
situation.
674.
such
persuasive
The Court makes a
case that the Government
showing
made
such
has
no
and that the Government’s as-
insufficiently weighty
justify
serted interests are
to
a ban
employee speech.
ante,
that curbs so much
See
470-477.
promulgating
Congress
reports
ban,
the
relied on
of
the
panels
suggested
prudence
two blue-ribbon
the
a
that
of
prohibition.
wide-ranging
report
any prob-
Neither
noted
stemming
receipt
lems, anecdotal or otherwise,
from the
of
employees.
honoraria
rank-and-file Executive Branch
report, therefore,
Neither
to
tends
substantiate the Govern-
efficiency argument,
presumes
ment’s administrative
which
may
widespread
justify prophylactic
that abuses
be so
as to
a
Congress assuredly
inspired by worthy
rule.
interest,
was
a
but
no
made
effort to establish a connection between its
large-scale
interest and the
inhibition of non-work-related
speech by
respondent
support
the
class. Our cases do not
purpose justi-
notion
that
bare assertion of a laudable
wide-ranging
fies
intrusions
First
on
Amendment liberties.
In Civil Service Common v. Letter Carriers,
The when it acts as may leeway; appropriate circumstances, re- in stantial speech protect. would otherwise strain that the Constitution prerogatives stem from its The Government’s this area plurality public-serving employer. ob- mission as As the year paid “[w]hen Waters, who is served last someone salary agency’s effective so that she will contribute to an operation begins say things or detract from the to do that agency’s government employer operation, effective must power have some to restrain her.” 511 U.
this case, however, the has exceeded the limits Government of interest in a wide- of its latitude. The bare assertion ranging prophylactic any showing here, ban without empirical pertaining considered anecdotal data by employees, to abuses lower echelon Executive Branch outweigh cannot suffice to substantial burden on the 1.7 employees. agree I million affected with the Court that §501 is unconstitutional to the extent that it this bars class receiving expressive from honoraria for activi- employment. ties that bear no nexus to Government II by pay by class before us is defined not scale, its mem- propensity bers’ to write articles without nexus to Govern- employment. any ment As to member of the class, the hono- may applications. raria ban have unconstitutional But the may susceptible application every ban be of constitutional ques- member class, do not well. We decide the respondents, my tion—a far harder case for view— apply whether it is constitutional to the honoraria ban to speech by relationship this class that bears a to Government employment. I believe that the Court overlooks this nuance enjoins against any when it all enforcement of 501 the class, may, one of whose members in the future, receive honoraria give respondents for work-related activities. I would relief they request: tailored to what invalidation of the statute in- applies they sofar as it to honoraria receive for with- employment. out nexus to Government See Brief for Re- spondents (noting respondents’ 45-46 central aim “could by remedy also be urged achieved similar to the one government by holding applied the ban invalid as — respondents’ writing speaking [that] activities have no employment”). nexus to their federal agree I remedy with the Court’s assertion that the in this properly parties case is limited to the before us. We have long analysis “strong characterized overbreadth *27 as medi- “employed by sparingly cine,” to be only the Court as a Oklahoma, Broadrick U. S. last resort.” v. (1973). Accordingly, “[i]t we observed that is not the have generally judicial practice, . . . nor do we consider usual unnecessarily.” proceed issue desirable, to to an overbreadth Fox, N. Y. 492 U. S. Board Trustees State Univ. (1989); Ferber, see also New York v. 469, 484-485 (footnotes omitted) (1982) (“By focusing on the fac- 747, 768 necessary for de- us, tual situation before and similar cases velopment we rule, of a constitutional face ‘flesh-and-blood’ legal problems adequate to in- with data ‘relevant and an judgment’”). though us, formed The class-before defined broadly, people generally who stand benefit consists of applied. Because, from the invalidation of this statute as objective may respondents freely admit, their central be as-applied challenge, Respond- achieved an see Brief for agree 45-46, ents I the Court has little warrant venture into the more difficult and uncertain overbreadth terrain. dissent, however,
Like the I believe that the Court im- poses unduly remedy enjoins an broad when it enforcement provision respondent of the entire as to class. There is a appeal argument commonsense to the Government’s that, having particular application deemed a of a statute unconsti- up tutional, a court should not then throw its hands and de- spair delineating unconstitutionality. the area of See Reply Brief for 38; United States Brief for United States 15. exception face, On its the statute contains an for a “series” speeches, appearances, subject and articles unless “the directly matter is related to the individual’s official duties or payment is made because of the individual’s status with §505(3) (1988 App. Supp. Government.” 5 U. S. C. ed., V). why I principle underlying see no reason the nexus this general provision appropriate cannot serve as the remedial line. judicial Court assumes leg- that it would venture into provision
islation were it
applies
to invalidate the
as it
*28
no-nexus
But it is
if not
speech.
equally,
more, inconsistent
intent
to strike
congressional
a
greater
the
portion
statute than is
to
necessary
remedy
at
problem
hand.
our
in this
Although
area is
jurisprudence
a model of
hardly
this Court has on several
clarity,
occasions declared a statute
invalid as to a particular
without
application
striking
entire
provision
to
it.
In
appears
United
encompass
Grace,
States v.
(1983),
U. S. 171
the Court
example,
addressed the
of a federal statute
constitutionality
making
it unlawful
to
stand, or move in
“parade,
or as-
processions
in the
semblages
Court
Supreme
or
or
Building
grounds,”
“to
therein
banner, or
display
device
any flag,
or
designed
to
into
notice
adapted
bring
public
any party, organization,
or
§13k.
movement.”
40 U. S. C.
the statute’s
Finding
extension to
fora
public
inadequately
Court
justified,
deemed the
unconstitutional as
provision
to the side-
applied
walks
Grace,
Court.
surrounding
Supreme
at
supra,
Garner,
183.
Tennessee
U.
1 (1985),
S.
the Court
invalidated
state
officers to use
provision permitting police
“
”
‘all the
means to effect the arrest’
of a
necessary
fleeing
or
defendant
insofar as it
forcibly
authorized
resisting
only
the use of
force
an
deadly
unarmed,
against
nondangerous
Id.,
at
22.
In Brockett v.
suspect.
Arcades,
Spokane
Inc.,
(1985),
In Brockett, the Court declared: “[W]here chal- parties the statute are those who desire to lenging in engage pro- tected that the overbroad statute purports punish, or who seek to both publish protected mate- unprotected ria^,] . . . statute forthwith be [t]he declared may invalid to the extent that it far, reaches too but otherwise left intact.” Id., at 504. Of we also course, noted that invalida- “[pjartial tion would be if it were improper in- contrary legislative tent the sense that the had an insever- legislature passed able Act or would not have it had it known the passed Id., In Brockett was invalid.”
challenged provision clause an- contained severability statute the state itself, continue of the Act would remainder nouncing its this act or application effect should “any provision Id., invalid. be held circumstance” any person made no and Garner Grace Because opinions n. 14. *29 clauses, severability the existence statutory mention of involved as best be having can explained these cases perhaps the the range After delineating severability. implied the Court implicitly applications, statute’s impermissible in Grace at Congress that concluded legislatures issue — have pre- Garner —would Tennessee Legislature and intact. continue statutes the remainder ferred that with our severability consistent cases are entirely These is silence that have held “Congress’ in which we precedents, raise a against does not presumption that —silence—and just 678, Brock, Airlines, Inc. v. Alaska severability.” (1987). 501(b) does below, “[s]ection noted As the Court Appeals clause, history and legislative a severability not contain severability.” of intent evidence concerning no direct yields 1993). Airlines, (CADC Alaska Under 2d 990 F. means operative question is no dispositive; this fact have would promulgated whether instead is Congress hon- not 501(b) that it could lawfully proscribe § it known had unrelated to for activities below GS-16 oraria employees Stern, 684; 480 U. Sep- See Government employment. Court, 51 in the Clauses Supreme arability Separability (1937) (in with the 82-83 dealing question Harv. L. Rev. “whether the asks legisla- Court of severable applications, whatever law to be effect to intend the tive would given body I think this constitutionally question extent was possible”). In this here. in the affirmative severing can be answered intact as to leave the we provision particular application, and to the Executive Branch Legisla- employees high-level sense Branches. Common tive and Judicial suggests, these Government confirms, employ- history legislative the statute’s case, principal were to this ees, not the parties g., See, e. floor de- (describing 2d, at 990 F. targets. abuses by referred to continually bates at which speakers reform). As for for the impetus of Congress” “Members me clear that it seems to GS-16, below honoraria receiving from tax examiners have barred would same if not bar the it could tax even lectures on policy on low- for articles honoraria from receiving examiners serves provision The balance cholesterol cooking. functioning independently and is capable laudable purpose Alaska Air- excised. Cf. is application once the improper supra, lines, §501 unconstitu- is the Court sum, I agree class of Executive the respondent insofar as it bars
tional for non-work- honoraria from receiving Branch employees In contrast and articles. related speeches, appearances, to that extent. invalid only I would hold 501 Court, *30 Rehnquist, with whom Justice Scalia Justice Chief dissenting. Thomas join, and Justice flawed seriously is I the Court’s opinion believe First Amendment First, its application two respects. to the gov- be accorded that should weight understates honoraria ban and overstates for the ernmental justifications will be deterred. Sec- the amount of that actually speech that it strikes of the statute ond, its discussion of the impact a handful of the most ap- is limited to only down carefully rem- but when it deals with the situations, individual pealing down the statute as it shifts and strikes edy suddenly gears Executive Branch employees to the entire class of applied I below GS-16. therefore dissent. grade
I dis- In in the aftermath of recommendations two by its ban commissions, adopted present tinguished Congress receipt on the of honoraria. defined an “honorar- ium” as money thing ap- payment any
“a or of value for an (including appear- pearance, speech a series of or article subject speeches, is di- ances, or articles if the matter rectly official or the to the individual’s duties related payment because of the individual’s status is made Government) by employee, ex- officer or Member, necessary expenses in- cluding, any travel actual relative) (and by to the extent curred such individual one paid by any expenses are reimbursed other or such person, shall be amount otherwise determined and the by any expenses such reduced the amount of paid expenses or are not reimbursed.” extent that such V). §505(3) (1988 Supp. App. ed., 5 U. S. C. writing, anyone speaking prohibits from or
The ban neither
only
anyone
speaks
penalize
writes;
nor does it
who
compensation.
by
denial of
effected
the statute is a
stricture
N.
Schuster,
Inc. v. Members
Y.State Crime
Simon &
(1991),we evaluated the constitu-
Bd.,
Unlike the law at issue Simon & the honoraria viewpoint Ante, is nor 468; ban neither content based. at (1989); Against Racism, cf. Ward v. 491 781, Rock U. S. 791
491 (1986). Theatres, Inc., Renton v. Playtime 41, 47-48 475 U. S. raise the of Government result, As a the ban does not specter & of ideas. Cf. Simon Schus control over marketplace im ter, the extent that the honoraria ban at 116. To supra, standard of concerns, First Amendment the proper plicates in with the Government’s review is found our cases dealing First Amendment activities of its ability regulate employees. not First Amendment
A does public employee relinquish of interest virtue of to comment on matters rights public v. Board Ed. Pickering See government employment. of 205, Dist. Will Cty., School 563, Township High (1983). Connick v. 461 140 We (1968); U. S. Myers, interests as an however, have that “the State’s emphasized, in of its ‘differ employer regulating speech in connection with from those it reg- significantly possesses Ibid. in ulation of of the speech citizenry general.’” 568). Pickering, at The resolution supra, (quoting proper “ ‘a balance between the these interests competing requires citizen, of the interests as commenting upon [employee], State, of the as an matters of concern and interest public of the services employer, promoting efficiency public ” at 140 its U. performs through employees.’ (quot- 568). Term, at Just last ing Pickering, supra, plurality the Court explained:
“The to First key Amendment analysis government decisions, then, is The employment this: government’s interest its as and effi- achieving goals effectively is elevated from a subordi- ciently possible relatively nate interest when it acts as to a sovereign significant one when it acts as cannot employer. government restrict in the name public large just But where the efficiency. is government employing someone for the very purpose effectively achieving its such restrictions well be goals, may appropriate.” Churchill, Waters (1994). U. S.
492 consistently given conducting sub have balance, we this predic government employers’ weight reasonable to
stantial
disruption,
involved was on a
when the
even
tions of
opinion).
(plurality
public
Id.,
673-674
concern.
at
matter of
“
employer,
Government, as an
Connick,
in
‘the
noted
As we
management
over the
and control
have wide discretion
must
personnel
461
at 151
affairs.’”
U.
and internal
of its
(1974)(Powell,
Kennedy,
(quoting
134, 168
416 U. S.
Arnett v.
result)).
concurring
concurring
part
in
in
and
J.,
involving gov-
principles
in our cases
are reflected
These
rights
engage
par-
employees’
in
ernmental restrictions
political activity.1
Mitchell, 330
In Public Workers v.
tisan
9(a)
(1947),
Act,
of the Hatch
which
we examined
U. S. 75
employees
prohibited
in the Executive Branch of
officers
“ ‘any
exceptions,
taking
from
Government,
the Federal
management
political
part
political
or in
cam-
active
§9(a)’s
ap-
analyzed
paigns.’” Id.,
strictures as
at 78. We
plied
partisan political
industrial em-
activities of an
“[f]or
ployee
and concluded that
Mint,
at the
States
United
necessary
regulation
employees
regu-
it not
that the act
is
reasonably
anything
than an act
deemed
lated be
more
efficiency
public
to interfere with the
serv-
§9(a)
Despite
Id.,
barred
ice.”
the fact that
three-
public employees
taking
part
million
from
“effective
in cam-
paigns
may bring
changes
lives,
about
in their
their
(Black,
happiness,” id.,
J.,
and their
dissent-
fortunes,
ing),
Congress’ judgment “efficiency may
we
that if in
held
by prohibiting
participation by
be best obtained
active
classi-
Curtis,
parte
In Ex
(1882),
upheld
pro
More than 25 we addressed the consti- §9(a) tutionality of Hatch Act. Civil Service (1973), Carriers, Comm’n v. Letter U. S. we “unhesi- tatingly reaffirmed] holding,” id., the Mitchell at 556, be- any provision cause “neither the First nor Amendment other barring invalidated] of the Constitution a law this kind of partisan political by employees,” conduct federal ibid. We applied balancing approach Pickering set forth in to the sweeping partisan political activity, Hatch Act’s limitation on by Congress and determined that the balance struck was by obviously important sought “sustainable interests to by partisan political be served the limitations on activities now contained in the S., Hatch Act.” 413 U. at 564. We “[p]erhaps Congress w[ould] concluded that at some time political come to a different view of the realities of life and position dispute Government service,” but we were in no to Congress’ current Id., view of the at matter. 567.
Although protection pressure per- from political certainly form chores awas concern of the Hatch only, Act, see ante, at it was no means the or even important, supra, the most Carriers, concern.2 Letter See recognized major at 566. Rather, Court that thesis of the Hatch Act was that great impartial
“to serve this end of Government—the execution of the laws—it is essential that federal em- ployees positions political parties, ... not take formal play not partisan politi- undertake to substantial roles campaigns, cal partisan political and not run for officeon Forbidding tickets. activities like these will reduce the Act, Prior to the Hatch prohibited had Civil employ Service “ ees from ‘us[ing] authority [their] official or influence politi to coerce the ” cal body.’ Mitchell, any person action of supra, at 79-80, (quoting n. 4 Act, 404). Civil 27, §2, Service ch. 22 Stat. government.” 413 U. and effective
hazards to fair only important that emphasized “it is not The Court practicing employees in fact avoid and its the Government they appear justice, political it is also critical but repre- system avoiding in the public if confidence it, be eroded to a disastrous not to be is Government sentative safeguard as a Hatch Act served Thus, the Ibid. extent.” impartiality perceived and effective- actual and to both the supra, Mitchell, See of the Federal Government. ness supra, at 564-567. Carriers, 95-96; Letter ban, I cannot Applying to the honoraria these standards *34 between its say has struck balance that that the employees to receive com- of its and the interests interests expression is unreason- pensation Amendment their First Pickering, supra, 564; Carriers, at Letter able. Cf. S., at 568. U. largely ignores in foremost the Government’s
The Court appearance impropriety of im prevention terest — propriety by solely focusing of the statute on the burdens — carefully applied Branch Executive selected to several application present employees whose situations their lowest interests are at statute where the Government’s employed by who lec the Postal Service ebb: a mail handler aerospace engineer religion; who lec an tured on Quaker history; microbiologist dance who reviewed tured on black performances; articles about and a tax examiner who wrote Undoubtedly these Ante, the environment. at 461-462. represent they by but no means class, are members of the “‘employee[s]’ which includes all . . . breadth of class 501(b)— grade app. GS-16, below who — but for 5 U. S. C. app. would receive as defined in 5 ‘honoraria’, U. S. C. 505(3).” App. Nothing in 124-125. the class certification by receipt engaged in limits the of honoraria to the activities g., the several discussed e. See, Court. of class ante, narrow prism artificially 6. This at n. entire First the Court’s focus of however, is the members, discussion. Amendment would receive who anyone definition speaks
The class An un- 124-125. App. for the statute. honorarium but an honoraria receive would of these individuals number known and their Gov- speech between their is a nexus where there doubt that Congress There is little ernment employment. im- interests preventing that its could conclude reasonably in the federal of impropriety and the appearance propriety in receiving interests the employees’ work force outweigh nexus to their Gov- has a for expression compensation v. Na- Election Comm’n Federal Cf. ernment employment. Right (1982) (“The Comm., to Work tional actual corruption both interest in preventing governmental of elected representatives of corruption and the appearance recognized”). has been long on the restrictions involving relies on cases
The Court is the Government to argue actors speech private related to hono- misconduct “evidence of required produce below of federal employees rank and file raria in the vast ante, at Ante, 475-476, 21.3 n. 472; GS-16.” grade “ ‘have that we however, consistently recognizes, Court of harm deference to government predictions given greater than to predic- restriction *35 employee used justify the on the to restrictions speech tions of harm used justify Waters, Ante, at n. (quoting at large.’” public S., at 673 (plurality opinion)). U. justify factfinding to its Ironically, engages unsupported Court in the replete with Thus, analysis is observa
conclusion. its First Amendment respondents’ messages exceptions, the content of “[w]ith tions such as few arguably any nothing jobs not even have has to do with their and does ante, work,” they in which impact efficiency on the of the offices adverse “[bjecause in 465; majority the of the at issue this case at and vast subject employment and takes does not involve the matter of Government 501(b) justify place workplace, the is unable to outside Government Ante, disruption.” grounds workplace of immediate on the ban, honoraria current of the enactment Prior to pre- distinguished its that by commissions two informed was inadequate. The 1989 were honoraria on limitations vious “Congress enact that recommended Commission Quadrennial accepting in abolishing practice honoraria legislation Re- Public Servants: for Our Fairness branches.” all three Legislative and Executive, port 1989 Commission of the 1988). (Dec. Re- With Honor: To Serve vi Salaries Judicial Law Ethics on Federal port President’s Commission of the Commission) (hereinafter 1989) (Mar. Wilkey echoed Reform concerns: many Commission’s Quadrennial by can speeches officials recognize federal “We may particular groups public and help or inform the private public interchange encourage between justification for no we can see Nevertheless, sectors. system Hono- of honoraria. perpetuating the current camouflage paid can be raria for efforts officials gain by entities to individuals officials’ favor. companies pay travel ex- and related honoraria The payments frequently penses to be normal deem these pay- likely expenses these believe that business public who re- officials their access ments enhance them.... ceive special problems
“Although of no associ- we are aware judiciary, receipt within the of honoraria ated with alleviating abuses in the the interest of Commission—in applying equitable legislative limitations branch and government joins Commis- Quadrennial across the — legislation recommending the enactment sion employ- receipt all officials and of honoraria ban government.” Id., at 35-36 three branches of ees all added). (emphasis banning Wilkey “recognize[d] that hono- Commission many have a substantial financial cost to offi-
raria would “the current id., but determined that ailment is cials,” *36 is a serious one and that this medicine no more bitter than ibid. is needed to cure the Commis- Wilkey patient,” also was aware that its recommendations covered not sion but it the cur- federal only “regarded] high-level employees,4 as as rent state of affairs to honoraria particular unaccept- that extreme, able Government believefd] [the could wait until an date the future to end unspecified not] Id., this harmful at 38.5 practice.” that in of the abuses of honoraria The Court concedes light Members, its could assume that reasonably by Congress of honoraria to officials in “payments judges high-ranking the Executive Branch a similar appearance might generate influence,” ante, 473, at but concludes that improper could not extend to federal em- this presumption impose appropriate “The Commission also considered whether it was employees, a flat ban on outside earned income all federal or in the alternative, by highest paid employees. federal In view of the diverse employees, circumstances of federal we felt that an across-the-board ban Wilkey unnecessary on outside earned income was and too harsh.” Com mission 38. (GAO) report Accounting The Court discusses a Office of the General argument refute the of misconduct there is some evidence related grade honoraria in the rank and file of federal below GS-16. Ante, (citing Accounting Office, Report at n. 18 General to the Chair man, Services, Subcommittee on Federal Post Civil Office and Service Affairs, of the Senate Committee on Governmental Employee Conduct Standards: Some Outside Activities Present Conflict-of-interest Issues (Feb. 1992) (hereinafter Report)). agencies’ GAO The GAO audited 11 Id., by employees. controls over outside activities at 2. The GAO Re port prior regime, agencies “overly reflects that under the some exhibited ibid., permissive approval policies,” agencies approved and “five some out activities, side such speaking consulting, appeared to violate prohibiting public private the standard of conduct the use of office for ibid. Nine of the gain,” agencies “approved eleven reviewed had outside activities in situations potential that involved violations of standard-of- Id., regulations conduct or conflict-of-interest statutes.” at 58. Never theless, the Court maintains appear that there is no evidence of even the ante, impropriety by employees ance of grade below GS-16. Cf. n. 18.
ployees theory underlying grade below GS-16. The employees grade Court’s federal below distinction—that power negligible GS-16 have to confer favors on those who might speak pay them to hear or to read their articles—is seriously examiners, Tax examiners, flawed. bank enforce- any employees ment number officials,or of federal have sub- power though compensa- stantial to confer favors even their grade tion level is below GS-16. rejected
Furthermore, we the same distinction in Public Workers v. Mitchell: suggestion
“There is a that administrative workers may constitutionally, political manage- barred, be from political campaigns ment and while industrial work- may constitutionally, barred, ers not be without an act ‘narrowly selectively punish and drawn define specific Congress conduct.’ . . . has determined that the presence government employees, whether industrial political party administrative, in the ranks of workers may is bad. Whatever differences there be between employees government administrative and in- employ dustrial workers its are differences in detail power so far as the constitutional under review is con- cerned. there Whether are such differences and what weight them, to attach to are all matters of detail Congress.” S., 330 U. at 102. obliged infinitely filigreed was not to draw an stat- every
ute to deal with subtle distinction between various groups employees. Carriers, See Letter 556; U. supra, Mitchell, at 99.
The experience Court dismisses the Hatch Act as irrele- protect vant, employees’ rights, because it notably aimed right expression, their to free rather than to restrict those rights. Ante, strange at 471. This is, indeed, a charac- 9(a) terization of prohibited of the Hatch It Act. officers Executive Branch of the Federal in the Gov “ ‘any political manage taking part active from ernment campaigns.’” supra, political Mitchell, or in ment penalty was from for violation dismissal office. 380 right political participate in a S., at cam U. 79. Since surely paign is in the abstract the First secured Amend (1976) Buckley g., (per see, Valeo, e. 424 S. ment, U. *38 curiam), hardly protected Act it can be said that the rights partisan engage political in of workers who wished to activity. purposes assuredly of of the Act was One to engaged employees poli free who did not wish to become requests by superiors money from their tics to contribute or protected employees time, but to the extent the Act these it undoubtedly rights the First limited Amendment of those part politics. did wish to an active who take regarding related Government’s concern the difficul- administering case-by-case analy- that ties would attach a particular propriety supports sis of honoraria also validity. emphasized honoraria ban’s As we in Waters, government’s goals “[t]he achieving interest in its as effec- tively possible efficiently relatively as from is elevated sovereign significant subordinate it interest when acts as to a employer.” Congress one when it acts as U. reasonably prior regime, determined that the ethics which required case-by-case inadequate. these determinations, was (“[T]he App. See current state of affairs as to honoraria extreme”). [is] unacceptable subsequent in the a As Report confirmed, GAO individual officers ethics and various agencies gave differing interpretations require- nexus “approved ment, and questionable some activities that were appropriateness accepting compensation.” as to the of GAO Report, at 9.
The Court observes that because a nexus limitation is re- speeches, tained for a series of be cannot that difficult to exception enforce. Ante, at 474. The that the honoraria ban speeches, appearances, articles,” or far a “series makes for purpose, undermining demonstrates the statute’s basic from inhibiting lit- Congress to the need was sensitive that ensuring responsibility speech its consistent tle impartially perform and that there their duties its Reply impropriety. Brief for United appearance no is likely undertake a “series” less is far 12-13. One States being paid than he is to make speeches articles without or being paid. single single speech article without write a or reasonably the number could have concluded employee a “series” of to deliver an wished cases where requests speeches the number of much smaller than would be speeches articles. give write individual or individual Pickering application which prototypical Unlike our employee normally response content of to the involves a prohibits is unre- speech, no ban the honoraria expressed message viewpoint the Gov- to the lated (plurality supra, employee.6 at 664-666 Waters, ernment Cf. upon employee (analyzing opinion) based termination of an *39 McPherson, employer); Rankin v. critical of the statements (1987) (analyzing anof 381-382 378, S.U. termination attempted employee upon assassi- about an based a comment (an- Pickering, Reagan); at 564 391 U. nation of President upon employee alyzing a letter criti- an based termination of board). ban Furthermore, the honoraria cal of the school expenses exempts prohibition re- and other from its travel terminating employee an example employer fanciful of an The Court’s employee’s expression even where disruptive of the effect of the because ante, 11, n. does not employer agrees expression, with the neutrality important viewpoint from the fact that and content are detract evaluating public employer’s of the action. factors reasonableness Carriers, g., e. Civil Service Comm’n v. Letter See, (1973) (“The imposed employees restrictions so far on federal are not they particular parties, groups, points aimed at or of view.... Nor do seek political opinions beliefs, to control or to interfere with or influence anyone’s polls”). vote at the 505(3)(1988 §App. employee speech.
lated to See 5 U. S. C. (1994). §2636.203 V); Supp. there is Because ed., 5 CFR only respondents’ a limited on First Amendment burden rights, Congress reasonably that its could have determined impropriety ap- paramount preventing and the interests in justified pearance impropriety in its work force hono- Carriers, Letter raria ban. See Civil Service Comm’n v. (1947). supra; Mitchell, 330 S. 75 Public Workers v. U. special irony There is a to the decision. order Court’s regain corruption public’s trust, combat and to essentially requires Congress to resurrect a bureauc- Court racy previously compelled replace equip that it felt and to case-by-case with determi- resources sufficient to conduct propriety regarding apparent nations the actual and of hono- employees grade raria all below Executive Branch GS-16. Pickering proper application test to I believe that a receipt compensa- on the this content-neutral restriction compels ban is consist- tion the conclusion that the honoraria ent the First Amendment. See Civil Service Comm’n (1973). Carriers, v. Letter 413 S. 548 U.
II expect, One would at the conclusion of its discussion in inapplicable I-IV, Parts for the to hold the statute Court grounds persons postal First Amendment such as the religion, worker who lectures on the and others of Quaker may fairly similar V, ilk. But the in Part in what be Court Henry ending, inapplica- described as an holds the statute O. to the ble entire class before the Court: all Executive Branch grade below GS-16 who would receive honoraria applied” remedy, but for the statute. Under the Court’s “as *40 501(b) § apply regardless would not of whether there was a compensation nexus between the and the em- individual’s ployment. agreed application if Even I of the honoraria expressive activity employee’s ban to unrelated to an Gov- 502 employment Amendment, I could the First violated
ernment remedy.7 agree the not Court’s (1983), analyzed we Grace, 461 U. S. In United States v. (1982ed.), § applied constitutionality as C. 13k of U. S. the surrounding Supreme public the Court. sidewalks to the “among things, ‘display [of] prohibited, other 13k Section adapted bring designed any flag, into to banner, or device any party, organization, public or movement’ in the notice grounds.” building Supreme and on its United States Court 13k). § (quoting We concluded that 172-173 461 U. at § prohibition justification for 13k’s there was insufficient public against carrying signs, side- banners, or devices on remedy, surrounding building. As a Id., at 183. walks applied to those we held that 13k was “unconstitutional Fane, 761, Ibid.; see also sidewalks.” Edenfield (1993) by (striking certified a ban on solicitation down context”). public applied “business accountants as to the analysis only appli- Although those limits its Court the honoraria ban where there is no nexus between cations of pro- employment, the Court honoraria Government application hibits of the honoraria ban to all Executive employees grade Branch even where there is a below GS-16 employees’ nexus between the honoraria and Govern- employment. respondents Ante, ment Even at 479-480.8 acknowledge litigation that the central aim of their could “be by remedy urged gov- achieved similar to the one by holding applied respond- the ban invalid as ernment — Crane, remedy Lost in the shuffle of the Court’s is Peter a GS-16 law yer Commission, from Regulatory respondent the Nuclear and a before Ante, the Court. Although the rationale behind the hold Court’s ante, ing necessarily apply Crane, 23, does not see at n. the Court’s holding apparently does. 8Because the Court has rewritten the honoraria ban so that no longer applies to grade GS-16, Executive Branch certainly below I could not condemn the Court for its refusal to rewrite the statute. Cf. ante, n. 26. I simply challenge the Court’s failure to tailor its remedy to analysis. match its selective
ents’ activities, which have no writing speaking nexus their federal Brief for employment.” 45-46. Respondents Grace,
Consistent with if our I supra, approach were to 501(b) § conclude violated the First I Amendment, would affirm the Court insofar Appeals only as its judgment af- 501(b) firmed the injunction against enforcement of to Executive Branch employees below applied GS-16 grade seek who honoraria that are unrelated to their Government employment.