OPINION OF THE COURT
BOROUGH OF DURYEA V. GUARNIERI
564 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NO. 09-1476
BOROUGH OF DURYEA, PENNSYLVANIA, et al.,
PETITIONERS
v. CHARLES J. GUARNIERI
on writ of certiorari to the united states court of
appeals for the third circuit
[June 20, 2011]
Justice Kennedy delivered the
opinion of the court.
Among other rights essential to
freedom, the First Amendment protects “the right of the people … to
petition the Government for a redress of grievances.” U. S. Const.,
Amdt. 1. This case concerns the extent of the protection, if any,
that the Petition Clause grants public employees in routine
disputes with government employers. Petitions are a form of
expression, and employees who invoke the Petition Clause in most
cases could invoke as well the Speech Clause of the First
Amendment. To show that an employer interfered with rights under
the Speech Clause, the employee, as a general rule, must show that
his speech was on a matter of public concern, as that term is
defined in the precedents of this and other courts. Here the issue
is whether that test applies when the employee invokes the Petition
Clause.
Alone among the Courts of Appeals to have
addressed the issue, the Court of Appeals for the Third Circuit has
held that the public concern test does not limit Petition Clause
claims by public employees. For the reasons stated below, this
conclusion is incorrect.
I
Charles Guarnieri filed a union
grievance challenging his termination as chief of police for the
borough of Duryea, a town of about 4,600 persons in northeastern
Pennsylvania. His grievance proceeded to arbitration pursuant to
the police union collective-bargaining agreement. The arbitrator
found that the borough council, Duryea’s legislative body and the
entity responsible for Guarnieri’s termination, committed
procedural errors in connection with the termination; and the
arbitrator also found that Guarnieri engaged in misconduct,
including “attempting to intimidate Council members.” App. 37, 38.
The arbitrator ordered Guarnieri reinstated after a disciplinary
suspension.
Id., at 38.
Upon Guarnieri’s return to the
job, the council issued 11 directives instructing Guarnieri in the
performance of his duties. The council’s attorney explained that
the council “wanted to be sure that the chief understood what was
going to be expected of him upon his return.” Tr. 19:12–14 (Apr.
16, 2008). One directive prohibited Guarnieri from working overtime
without the council’s “express permission.” App. 59, ¶1. Another
indicated that “[t]he police car is to be used for official
business only.”
Id., at 60, ¶9. A third stated that the
“Duryea municipal building is a smoke free building” and that the
“police department is not exempt.”
Id., at 61, ¶10.
Guarnieri testified that, because of these and other directives,
his “coming back wasn’t a warm welcome feeling.” Tr. 65:7–8 (Apr.
15, 2008). Guarnieri filed a second union grievance challenging the
directives. The arbitrator instructed the council to modify or
withdraw some of the directives on the grounds that they were
vague, interfered with the authority of the mayor, or were contrary
to the collective-bargaining agreement.
Guarnieri filed this lawsuit against the
borough, the borough council, and individual members of the council
under 42 U. S. C. §1983. Guarnieri claimed that his first
union grievance was a petition protected by the Petition Clause of
the First Amendment, and he alleged that the directives issued upon
his reinstatement were retaliation for that protected activity.
After this suit was filed, the council denied
a request by Guarnieri for $338 in overtime. The United States
Department of Labor investigated and concluded that Guarnieri was
entitled to be paid. The council offered Guarnieri a check for the
amount, but Guarnieri refused to accept it. Instead, Guarnieri
amended his complaint to encompass the denial of overtime.
Guarnieri alleged that his §1983 lawsuit was a petition and that
the denial of overtime constituted retaliation for his having filed
the lawsuit.
Under the law of the Circuit, the defendants
could not obtain judgment as a matter of law on the basis that the
lawsuit and grievances were not on a matter of public concern. The
case proceeded to a jury. Guarnieri’s attorney argued that the
council was “sending a message to” Guarnieri through the directives
and the denial of overtime: “You might have won your arbitration,
but we control you.” Tr. 53:24–25 (Apr. 17, 2008). The District
Court instructed the jury that the lawsuit and union grievances
were “protected activity … under the constitution,” and that the
jury could find defendants liable if it found an adequate
connection between the protected activity and the alleged
retaliation.
Id., at 61:17–20; 62. The jury found in favor
of Guarnieri. The jury awarded $45,000 in compensatory damages and
$24,000 in punitive damages for the directives, as well as $358 in
compensatory damages and $28,000 in punitive damages for the denial
of overtime. The District Court awarded $45,000 in attorney’s fees
and denied defendants’ renewed motion for judgment as a matter of
law.
Defendants appealed on the ground that
Guarnieri’s grievances and lawsuit did not address matters of
public concern. Courts outside the Third Circuit have held that
allegedly retaliatory actions by government employers against
government employees may not give rise to liability under the
Petition Clause unless the employee’s petition related to a matter
of public concern. See,
e.g., Kirby v.
Elizabeth City, 388 F. 3d 440, 448–449 (CA4 2004);
Tang v.
Rhode Island, Dept. of Elderly Affairs,
163 F. 3d 7, 11–12 (CA1 1998);
White Plains Towing
Corp. v.
Patterson, 991 F. 2d 1049, 1059 (CA2
1993). These courts rely on a substantial overlap between the
rights of speech and petition to justify the application of Speech
Clause pre-cedents to Petition Clause claims. They reason that,
whether the grievance is considered under the Speech Clause or the
Petition Clause, the government employer is entitled to take
adverse action against the employee unless the dispute involves a
matter of public concern.
Rejecting that view, the Court of Appeals here
affirmed the award of compensatory damages, although it found
insufficient evidence to sustain the award of punitive damages. The
Court of Appeals concluded that “ ‘a public employee who has
petitioned the government through a formal mechanism such as the
filing of a lawsuit or grievance is protected under the Petition
Clause from retaliation for that activity, even if the petition
concerns a matter of solely private concern.’ ” 364 Fed. Appx.
749, 753 (CA3 2010) (quoting
Foraker v.
Chaffinch, 501 F. 3d 231, 236 (CA3 2007)). The
decision of the Court of Appeals was consistent with the rule
adopted and explained by that court in
San Filippo v.
Bongiovanni, 30 F. 3d 424, 442 (1994). This Court
granted certiorari to resolve the conflict in the Courts of
Appeals. 562 U. S. ___ (2010).
II
When a public employee sues a
government employer under the First Amendment’s Speech Clause, the
employee must show that he or she spoke as a citizen on a matter of
public concern.
Connick v.
Myers,
461 U. S. 138, 147
(1983). If an employee does not speak as a citizen, or does not
address a matter of public concern, “a federal court is not the
appropriate forum in which to review the wisdom of a personnel
decision taken by a public agency allegedly in reaction to the
employee’s behavior.”
Ibid. Even if an employee does speak
as a citizen on a matter of public concern, the employee’s speech
is not automatically privileged. Courts balance the First Amendment
interest of the employee against “the interest of the State, as an
employer, in promoting the efficiency of the public services it
performs through its employees.”
Pickering v.
Board of
Ed. of Township High School Dist. 205, Will Cty.,
391 U. S. 563, 568
(1968).
This framework “reconcile[s] the
employee’s right to engage in speech and the government employer’s
right to protect its own legitimate interests in performing its
mission.”
San Diego v.
Roe,
543 U. S. 77, 82 (2004)
(per curiam). There are some rights and freedoms so
fundamental to liberty that they cannot be bargained away in a
contract for public employment. “Our responsibility is to ensure
that citizens are not deprived of [these] fundamental rights by
virtue of working for the government.”
Connick, supra, at
147; see also
Keyishian v.
Board of Regents of Univ.
of State of N. Y.,
385 U. S. 589, 605–606
(1967). Nevertheless, a citizen who accepts public employment “must
accept certain limitations on his or her freedom.”
Garcetti v.
Ceballos,
547 U. S. 410, 418
(2006). The government has a substantial interest in ensuring that
all of its operations are efficient and effective. That interest
may require broad authority to supervise the conduct of public
employees. “When someone who is paid a salary so that she will
contribute to an agency’s effective operation begins to do or say
things that detract from the agency’s effective operation, the
government employer must have some power to restrain her.”
Waters v.
Churchill,
511 U. S. 661, 675
(1994) (plurality opinion). Restraints are justified by the
consensual nature of the employment relationship and by the unique
nature of the government’s interest.
This case arises under the Petition Clause,
not the Speech Clause. The parties litigated the case on the
premise that Guarnieri’s grievances and lawsuit are petitions
protected by the Petition Clause. This Court’s precedents confirm
that the Petition Clause protects the right of in-dividuals to
appeal to courts and other forums estab- lished by the government
for resolution of legal disputes. “[T]he right of access to courts
for redress of wrongs is an aspect of the First Amendment right to
petition the government.”
Sure-Tan, Inc. v.
NLRB,
467 U. S. 883,
896–897 (1984); see also
BE&K Constr. Co. v.
NLRB,
536
U. S. 516, 525 (2002);
Bill Johnson’s Restaurants,
Inc. v.
NLRB,
461 U. S. 731, 741
(1983);
California Motor Transport Co. v.
Trucking
Unlimited,
404
U. S. 508, 513 (1972). Although retaliation by a government
employer for a public employee’s exercise of the right of access to
the courts may implicate the protections of the Petition Clause,
this case provides no necessity to consider the correct application
of the Petition Clause beyond that context.
Although this case proceeds under the Petition
Clause, Guarnieri just as easily could have alleged that his
employer retaliated against him for the speech contained within his
grievances and lawsuit. That claim would have been subject to the
public concern test already described. Because Guarnieri chose to
proceed under the Petition Clause, however, the Court of Appeals
applied a more generous rule. Following the decision of the Court
of Appeals in
San Filippo, supra, at 443, Guarnieri was
deemed entitled to protection from retaliation so long as his
petition was not a “sham.” Under that rule, defendants and other
public employers might be liable under the Petition Clause even if
the same conduct would not give rise to liability under the Speech
Clause. The question presented by this case is whether the history
and purpose of the Petition Clause justify the imposition of
broader liability when an employee invokes its protection instead
of the protection afforded by the Speech Clause.
It is not necessary to say that the two
Clauses are identical in their mandate or their purpose and effect
to acknowledge that the rights of speech and petition share
substantial common ground. This Court has said that the right to
speak and the right to petition are “cognate rights.”
Thomas v.
Collins,
323 U. S. 516, 530
(1945); see also
Wayte v.
United States,
470 U. S. 598, 610,
n. 11 (1985). “It was not by accident or coincidence that the
rights to freedom in speech and press were coupled in a single
guaranty with the rights of the people peaceably to assemble and to
petition for redress of grievances.”
Thomas, 323 U. S., at
530. Both speech and petition are integral to the democratic
process, although not necessarily in the same way. The right to
petition allows citizens to express their ideas, hopes, and
concerns to their government and their elected representatives,
whereas the right to speak fosters the public exchange of ideas
that is integral to deliberative democracy as well as to the whole
realm of ideas and human affairs. Beyond the political sphere, both
speech and petition advance personal expression, although the right
to petition is generally concerned with expression directed to the
government seeking redress of a grievance.
Courts should not presume there is always an
essential equivalence in the two Clauses or that Speech Clause
precedents necessarily and in every case resolve Petition Clause
claims. See
ibid. (rights of speech and petition are “not
identical”). Interpretation of the Petition Clause must be guided
by the objectives and aspirations that underlie the right. A
petition conveys the special concerns of its author to the
government and, in its usual form, re-quests action by the
government to address those concerns. See
Sure-Tan Inc.,
supra, at 896–897.
This Court’s opinion in
McDonald v.
Smith,
472
U. S. 479 (1985), has sometimes been interpreted to mean that
the right to petition can extend no further than the right to
speak; but
McDonald held only that speech contained within
a petition is subject to the same standards for defamation and
libel as speech outside a petition. In those circumstances the
Court found “no sound basis for granting greater constitutional
protection to statements made in a petition … than other First
Amendment expressions.”
Id., at 485. There may arise cases
where the special concerns of the Petition Clause would provide a
sound basis for a distinct analysis; and if that is so, the rules
and principles that define the two rights might differ in emphasis
and formulation.
As other Courts of Appeals have recognized,
however, claims of retaliation by public employees do not call for
this divergence. See
supra, at 4. The close connection
between these rights has led Courts of Appeals other than the Third
Circuit to apply the public concern test developed in Speech Clause
cases to Petition Clause claims by public employees. As will be
explained further, this approach is justified by the extensive
common ground in the definition and delineation of these rights.
The considerations that shape the application of the Speech Clause
to public employees apply with equal force to claims by those
employees under the Petition Clause.
The substantial government interests that
justify a cautious and restrained approach to the protection of
speech by public employees are just as relevant when public
employees proceed under the Petition Clause. Petitions, no less
than speech, can interfere with the efficient and effective
operation of government. A petition may seek to achieve results
that “contravene governmental policies or impair the proper
performance of governmental functions.”
Garcetti, 547 U.
S., at 419. Government must have authority, in appropriate
circumstances, to restrain employees who use petitions to frustrate
progress towards the ends they have been hired to achieve. A
petition, like other forms of speech, can bring the “mission of the
employer and the professionalism of its officers into serious
disrepute.”
Roe, 543 U. S., at 81. A public employee
might, for instance, use the courts to pursue personal vendettas or
to harass members of the general public. That behavior could cause
a serious breakdown in public confidence in the government and its
employees. And if speech or petition were directed at or concerned
other public employees, it could have a serious and detrimental
effect on morale.
When a petition takes the form of a lawsuit
against the government employer, it may be particularly disruptive.
Unlike speech of other sorts, a lawsuit demands a response.
Mounting a defense to even frivolous claims may consume the time
and resources of the government employer. Outside the context of
public employment, this Court has recognized that the Petition
Clause does not protect “objectively baseless” litigation that
seeks to “ ‘interfere
directly with the business
relationships of a competitor.’ ”
Professional Real Estate
Investors, Inc. v.
Columbia Pictures Industries,
Inc.,
508 U. S.
49, 60–61 (1993) (quoting
Eastern Railroad Presidents
Conference v.
Noerr Motor Freight, Inc.,
365 U. S. 127, 144
(1961)). In recognition of the substantial costs imposed by
litigation, Congress has also required civil rights plaintiffs
whose suits are “frivolous, unreasonable, or without foundation” to
pay attorney’s fees incurred by defendants.
Christiansburg
Garment Co. v.
EEOC,
434 U. S. 412, 421
(1978); see also Fed. Rule Civ. Proc. 11 (providing sanctions
for claims that are “presented for [an] improper purpose,”
frivolous, or lacking evidentiary support). The government likewise
has a significant interest in disciplining public employees who
abuse the judicial process.
Unrestrained application of the Petition
Clause in the con- text of government employment would subject a
wide range of government operations to invasive judicial
superintendence. Employees may file grievances on a variety of
employment matters, including working conditions, pay, discipline,
promotions, leave, vacations, and terminations. See Brief for
National School Boards Association as
Amicus Curiae 5.
Every government action in response could present a potential
federal constitutional issue. Judges and juries, asked to determine
whether the government’s actions were in fact retaliatory, would be
required to give scrutiny to both the government’s response to the
grievance and the government’s justification for its actions. This
would occasion review of a host of collateral matters typically
left to the discretion of public officials. Budget priorities,
personnel decisions, and substantive policies might all be laid
before the jury. This would raise serious federalism and
separation-of-powers concerns. It would also consume the time and
attention of public officials, burden the exercise of legitimate
authority, and blur the lines of accountability between officials
and the public.
This case illustrates these risks and costs.
Guarnieri’s attorney invited the jury to review myriad details of
government decisionmaking. She questioned the council’s decision to
issue directives in writing, rather than orally, Tr. 66 (Apr. 14,
2008); the council’s failure to consult the mayor before issuing
the directives,
id., at 105 (Apr. 15, 2008); the amount of
money spent to employ “Philadelphia lawyers” to defend Guarnieri’s
legal challenges,
id., at 191–193:7–10 (Apr. 14, 2008);
152–153 (Apr. 16, 2008); and the wisdom of the council’s decision
to spend money to install Global Positioning System devices on
police cars,
id., at 161–162 (same). Finally, the attorney
invited the jury to evaluate the council’s decisions in light of an
emotional appeal on behalf of Guarnieri’s “little dog Hercules,
little white fluffy dog and half Shitsu.”
Id., at 49:13–14
(Apr. 14, 2008). It is precisely to avoid this intrusion into
internal governmental affairs that this Court has held that, “while
the First Amendment invests public employees with certain rights,
it does not empower them to ‘constitutionalize the employee
grievance.’ ”
Garcetti, supra, at 420 (quoting
Connick, 461 U. S., at 154).
If the Petition Clause were to apply even
where matters of public concern are not involved, that would be
unnecessary, or even disruptive, when there is already protection
for the rights of public employees to file grievances and to
litigate. The government can and often does adopt statutory and
regulatory mechanisms to protect the rights of employees against
improper retaliation or discipline, while preserving important
government interests. Cf.
Garcetti,
supra, at 425
(noting a “powerful network of legislative enactments”). Employees
who sue under federal and state employment laws often benefit from
generous and quite detailed antiretaliation provisions. See,
e.g., Pa. Stat. Ann., Tit. 43, §1101.1201(a)(4) (Purdon
2009); §1101.1302. These statutory protections are subject to
legislative revision and can be designed for the unique needs of
State, local, or Federal Governments, as well as the special
circumstances of particular governmental offices and agencies. The
Petition Clause is not an instrument for public employees to
circumvent these legislative enactments when pursuing claims based
on ordinary workplace grievances.
In light of the government’s interests in the
public employment context, it would be surprising if Petition
Clause claims by public employees were not limited as necessary to
protect the employer’s functions and responsibilities. Even beyond
the Speech Clause, this Court has explained that “government has
significantly greater leeway in its dealings with citizen employees
than it does when it brings its sovereign power to bear on citizens
at large.”
Engquist v.
Oregon Dept. of
Agriculture,
553 U. S. 591, 599
(2008); see also
NASA v.
Nelson, 562 U. S.
___ , ___ (2011) (slip op., at 12). The government’s interest
in managing its internal affairs requires proper restraints on the
invocation of rights by employees when the workplace or the
government employer’s responsibilities may be af-fected. There is
no reason to think the Petition Clause should be an exception.
The public concern test was developed to
protect these substantial government interests. Adoption of a
different rule for Petition Clause claims would provide a ready
means for public employees to circumvent the test’s protections.
Consider Sheila Myers, who was the original plaintiff in
Connick. She circulated “a questionnaire soliciting the
views of her fellow staff members” on various office matters. 461
U. S., at 141. The Court held that Myers’ claim for retaliation
failed the public concern test because the questionnaire was “most
accurately characterized as an employee grievance concerning
internal office policy.”
Id., at 154. It would undermine
that principle if a different result would have obtained had Myers
raised those same claims using a formal grievance procedure. Myers’
employer “reasonably believed [Myers’ complaints] would disrupt the
office, undermine his authority, and destroy close working
relationships.”
Ibid. These concerns would be no less
significant in the context of a formal grievance. Employees should
not be able to evade the rule articulated in the
Connick
case by wrapping their speech in the mantle of the Petition
Clause.
Articulation of a separate test for the
Petition Clause would aggravate potential harm to the government’s
interests by compounding the costs of compliance with the
Constitution. A different rule for each First Amendment claim would
require employers to separate petitions from other speech in order
to afford them different treatment; and that, in turn, would add to
the complexity and expense of compliance with the Constitution.
Identifying peti-tions might be easy when employees employ formal
grievance procedures, but the right to petition is not limited to
petitions lodged under formal procedures. See,
e.g.,
Brown v.
Louisiana,
383 U. S. 131 (1966).
Indeed, the employee in
Connick could have made a
colorable argument that her questionnaire ought to be viewed as a
petition for redress of grievances.
Guarnieri claims application of the public
concern test to the Petition Clause would be inappropriate in light
of the private nature of many petitions for redress of grievances.
The Petition Clause undoubtedly does have force and application in
the context of a personal grievance addressed to the government.
See,
e.g., Trainmen v.
Virginia ex rel.
Virginia State Bar,
377 U. S. 1 (1964);
Thomas, 323 U. S., at 530–531. At the founding, citizens
petitioned on a wide range of subjects, including matters of both
private and public concern. Petitions to the colonial legislatures
concerned topics as diverse as debt actions, estate distributions,
divorce proceedings, and requests for modification of a criminal
sentence. Higginson, A Short History of the Right to Petition
Government for the Redress of Grievances, 96 Yale L. J. 142,
146 (1986). Although some claims will be of interest only to the
individual making the appeal, for that individual the need for a
legal remedy may be a vital imperative. See,
e.g.,
M. L. B. v.
S. L. J.,
519 U. S. 102
(1996);
Boddie v.
Connecticut,
401 U. S. 371 (1971).
Outside the public employment context, constitutional protection
for petitions does not necessarily turn on whether those petitions
relate to a matter of public concern.
There is, however, no merit to the suggestion
that the public concern test cannot apply under the Petition Clause
because the majority of petitions to colonial legislatures
addressed matters of purely private concern. In analogous cases
under the Speech Clause, this Court has noted the “Constitution’s
special concern with threats to the right of citizens to
participate in political affairs,”
Connick, supra, at 145,
even though it is likely that, in this and any other age, most
speech concerns purely private matters. The proper scope and
application of the Petition Clause likewise cannot be determined
merely by tallying up petitions to the colonial legislatures. Some
effort must be made to identify the historic and fundamental
principles that led to the enumeration of the right to petition in
the First Amendment, among other rights fundamental to liberty.
Petitions to the government assume an added
dimension when they seek to advance political, social, or other
ideas of interest to the community as a whole. Petition, as a word,
a concept, and an essential safeguard of freedom, is of ancient
significance in the English law and the Anglo-American legal
tradition. See,
e.g., 1 W. Blackstone, Commentaries *143.
The right to petition applied to peti-tions from nobles to the
King, from Parliament to the King, and from the people to the
Parliament, and it concerned both discrete, personal injuries and
great matters of state.
The right to petition traces its origins to
Magna Carta, which confirmed the right of barons to petition the
King. W. McKechnie, Magna Carta: A Commentary on the Great
Charter of King John 467 (rev. 2d ed. 1958). The Magna Carta itself
was King John’s answer to a petition from the barons.
Id.,
at 30–38. Later, the Petition of Right of 1628 drew upon centuries
of tradition and Magna Carta as a model for the Parliament to issue
a plea, or even a demand, that the Crown refrain from certain
actions. 3 Car. 1, ch. 1 (1627). The Petition of Right stated four
principal grievances: taxation without consent of Parliament;
arbitrary imprisonment; quartering or billeting of soldiers; and
the imposition of martial law. After its passage by both Houses of
Parliament, the Petition received the King’s assent and became part
of the law of England. See S. Gardiner, The First Two Stuarts and
the Puritan Revolution, 1603–1660, pp. 60–61 (1886). The Petition
of Right occupies a place in English constitutional history
superseded in importance, perhaps, only by Magna Carta itself and
the Declaration of Right of 1689.
The following years saw use of mass petitions
to address matters of public concern. See 8 D. Hume, History of
England from the Invasion of Julius Caesar to the Revolution in
1688, p. 122 (1763) (“Tumultuous petitioning … was an admirable
expedient … for spreading discontent, and for uniting the nation in
any popular clamour”). In 1680, for instance, more than 15,000
persons signed a petition regarding the summoning and dissolution
of Par-liament, “one of the major political issues agitating the
nation.” Knights, London’s ‘Monster’ Petition, 36 Historical
Journal 39, 40–43 (1993). Nine years later, the Declaration of
Right listed the illegal acts of the sovereign and set forth
certain rights of the King’s subjects, one of which was the right
to petition the sovereign. It stated that “it is the Right of the
Subjects to petition the King, and all Commitments and Prosecutions
for such Petitioning are Illegal.” 1 W. & M., ch. 2; see also
L. Schwoerer, The Declaration of Rights, 1689, pp. 69–71
(1981).
The Declaration of Independence of 1776 arose
in the same tradition. After listing other specific grievances and
wrongs, it complained, “In every stage of these Oppressions We have
Petitioned for Redress in the most humble terms: Our repeated
Petitions have been answered only by repeated injury.” The
Declaration of Independence ¶30.
After independence, petitions on matters of
public concern continued to be an essential part of contemporary
debates in this country’s early history. Two years before the
adoption of the Constitution, James Madison’s Memorial and
Remonstrance against Religious Assessments, an important document
in the history of the Establishment Clause, was presented to the
General Assembly of the Com-monwealth of Virginia as a petition.
See 1 D. Lay- cock, Religious Liberty: Overviews and History
90 (2010);
Arizona Christian School Tuition Organization
v.
Winn, 563 U. S. ___ , ___ (2011) (slip op., at
12–13). It attracted over 1,000 signatures. Laycock,
supra, at 90, n. 153. During the ratification
debates, Antifederalists circulated petitions urging delegates not
to adopt the Constitution absent modification by a bill of rights.
Boyd, Antifederalists and the Acceptance of the Constitution:
Pennsylvania, 1787–1792, 9 Publius, No. 2, pp. 123, 128–133 (Spring
1979).
Petitions to the National Legislature also
played a central part in the legislative debate on the subject of
slavery in the years before the Civil War. See W. Miller, Arguing
About Slavery (1995). Petitions allowed participation in democratic
governance even by groups excluded from the franchise. See Mark,
The Vestigial Constitution: The History and Significance of the
Right to Petition, 66 Ford. L. Rev. 2153, 2182 (1998). For
instance, petitions by women seeking the vote had a role in the
early woman’s suffrage movement. See Cogan & Ginzberg, 1846
Petition for Woman’s Suffrage, New York State Constitutional
Convention, 22 Signs 427, 437–438 (1997). The right to petition is
in some sense the source of other fundamental rights, for petitions
have provided a vital means for citizens to request recognition of
new rights and to assert existing rights against the sovereign.
Petitions to the courts and similar bodies can
likewise address matters of great public import. In the context of
the civil rights movement, litigation provided a means for “the
distinctive contribution of a minority group to the ideas and
beliefs of our society.”
NAACP v.
Button,
371 U. S. 415,
431 (1963). Individuals may also “engag[e] in litigation as a
vehicle for effective political expression and association, as well
as a means of communicating useful information to the public.”
In re Primus,
436 U. S. 412, 431
(1978). Litigation on matters of public concern may facilitate the
informed public participation that is a cornerstone of democratic
society. It also allows individuals to pursue desired ends by
direct appeal to government officials charged with applying the
law.
The government may not misuse its role as
employer unduly to distort this deliberative process. See
Garcetti, 547 U. S., at 419. Public employees are “the
members of a community most likely to have informed and definite
opinions” about a wide range of matters related, directly or
indirectly, to their employment.
Pickering, 391 U. S., at
572. Just as the public has a right to hear the views of public
employees, the public has a right to the benefit of those
employees’ participation in petitioning activity. Petitions may
“allow the public airing of disputed facts” and “promote the
evolution of the law by supporting the development of legal
theories,”
NLRB, 536 U. S., at 532 (internal quotation
marks omitted), and these and other benefits may not accrue if one
class of knowledgeable and motivated citizens is prevented from
engaging in petitioning activity. When a public employee seeks to
participate, as a citizen, in the process of deliberative
democracy, either through speech or petition, “it is necessary to
regard the [employee] as the member of the general public he seeks
to be.”
Pickering, supra, at 574.
The framework used to govern Speech Clause
claims by public employees, when applied to the Petition Clause,
will protect both the interests of the government and the First
Amendment right. If a public employee petitions as an employee on a
matter of purely private concern, the employee’s First Amendment
interest must give way, as it does in speech cases.
Roe,
543 U. S., at 82–83. When a public employee petitions as a citizen
on a matter of public concern, the employee’s First Amendment
interest must be balanced against the countervailing interest of
the government in the effective and efficient management of its
internal affairs.
Pickering, supra, at 568. If that
balance favors the public employee, the employee’s First Amendment
claim will be sustained. If the interference with the government’s
operations is such that the balance favors the employer, the
employee’s First Amendment claim will fail even though the petition
is on a matter of public concern.
As under the Speech Clause, whether an
employee’s petition relates to a matter of public concern will
depend on “the content, form, and context of [the petition], as
revealed by the whole record.”
Connick, 461 U. S., at
147–148, and n. 7. The forum in which a petition is lodged
will be relevant to the determination of whether the petition
relates to a matter of public concern. See
Snyder v.
Phelps, 562 U. S. ___ , ___ (2011) (slip op., at
8–9). A petition filed with an employer using an internal grievance
procedure in many cases will not seek to communicate to the public
or to advance a political or social point of view beyond the
employment context.
Of course in one sense the public may always
be interested in how government officers are performing their
duties. But as the
Connick and
Pickering test has
evolved, that will not always suffice to show a matter of public
concern. A petition that “involves nothing more than a complaint
about a change in the employee’s own duties” does not relate to a
matter of public concern and accordingly “may give rise to
discipline without imposing any special burden of justification on
the government employer.”
United States v.
Treasury
Employees,
513
U. S. 454, 466 (1995). The right of a public employee under the
Petition Clause is a right to participate as a citizen, through
petitioning activity, in the democratic process. It is not a right
to transform everyday employment disputes into matters for
constitutional litigation in the federal courts.
III
Because the Third Circuit did not
find it necessary to apply this framework, there has been no
determination as to how it would apply in the context of this case.
The parties did not address the issue in the opening brief or the
response, and the United States did not address the issue in its
brief as
amicus curiae. In their reply brief, petitioners
suggest that this Court should address the issue and resolve it in
their favor. Yet in their opening brief petitioners sought only
vacatur and remand. This Court need not consider this issue without
the benefit of full briefs by the parties.
The judgment of the Court of
Appeals is vacated, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
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