OCTOBER TERM, 1994
Syllabus
UNITED STATES ET AL.
v. NATIONAL TREASURY EMPLOYEES UNION
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
No. 93-1170. Argued November 8, 1994-Decided February
22,1995
After § 501(b) of the Ethics in Government Act of 1978 was
amended to prohibit a Member of Congress, federal officer, or other
Government employee from accepting an honorarium for making an
appearance or speech or writing an article, respondents-including
individual members of, and a union representing, a class composed
of all Executive Branch employees below grade GS-16 who, but for §
501(b), would receive honoraria-filed a suit challenging the
statute as an unconstitutional abridgment of their freedom of
speech. The speeches and articles for which respondents had
received honoraria in the past concerned matters such as religion,
history, dance, and the environment; with few exceptions, neither
their subjects nor the persons or groups paying for them had any
connection with respondents' official duties. In granting
respondents' motion for summary judgment, the District Court held §
501(b) unconstitutional insofar as it applies to Executive Branch
employees and enjoined the Government from enforcing it against any
such employee. The Court of Appeals affirmed, emphasizing,
inter
alia, that the Government's failure as to many respondents to
identify some sort of nexus between the employee's job and either
the expression's subject matter or the payor's character undercut
its proffered concern about actual or apparent improprieties in the
receipt of honoraria.
Held: Section 501(b) violates the First Amendment. Pp.
464-480.
(a) The honoraria ban imposes the kind of burden that abridges
speech under the First Amendment. Where, as here, Government
employees seek to exercise their right as citizens to comment on
matters of public interest, and are not attempting simply to speak
as employees upon personal matters, the Government must be able to
satisfy a balancing test of the type set forth in
Pickering
v.
Board of Ed. of Township High School Dist. 205, Will
Cty., 391 U. S.
563, 568, in order to maintain a statutory restriction on the
employees' speech. See
Civil Service Comm'n v.
Letter
Carriers, 413 U.
S. 548, 564. However, because § 501(b) constitutes a wholesale
deterrent to a broad category of expression by a massive number of
potential speakers, the Government's burden here is even greater
than it was in
Pickering and its progeny, which
455
usually involved individual disciplinary actions taken in
response to particular government employees' actual speech.
Specifically, the Government must show that the interests of both
potential audiences and a vast group of present and future
employees in a broad range of present and future expression are
outweighed by that expression's "necessary impact on the actual
operation" of the Government,
Pickering, 391 U. S., at 571.
Although § 501(b) neither prohibits any speech nor discriminates
among speakers based on the content or viewpoint of their messages,
its prohibition on compensation unquestionably imposes a
significant burden on respondents' expressive activity by inducing
them to curtail their expression if they wish to continue their
employment. Moreover, the ban imposes a far more significant burden
on them than on the relatively small group of lawmakers whose past
receipt of honoraria assertedly motivated its enactment. The
large-scale disincentive to expression also imposes a significant
burden on the public's right to read and hear what Government
employees would otherwise have written and said. Pp. 464-470.
(b) The Government has failed to show how the interests it
asserts to justify § 501(b) are served by applying the honoraria
ban to respondents.
Public Workers v.
Mitchell,
330 U. S. 75,
distinguished. Although the asserted concern that federal officers
not misuse or appear to misuse power by accepting compensation for
their unofficial and nonpolitical writing and speaking activities
is undeniably powerful, the Government cites no evidence of
misconduct related to honoraria by the vast rank and file of
federal employees below grade GS-16. The limited evidence of actual
or apparent impropriety by Members of Congress and highlevel
executives cannot justify extension of the honoraria ban to that
rank and file, an immense class of workers with negligible power to
confer favors on those who might pay to hear them speak or to read
their articles. Moreover, while operational efficiency is
undoubtedly a vital governmental interest, several features of the
text of the ban and of the pertinent regulations cast serious doubt
on the Government's submission that Congress perceived honoraria as
so threatening to the efficiency of the entire federal service as
to render the ban a reasonable response to the threat. First, the
total exemption of payments for "any series of appearances,
speeches, or articles" unrelated to the employee's official duties
or status from § 505(3)'s definition of "honorarium" undermines
application of the ban to individual speeches and articles with no
nexus to Government employment. Second, the definition's limitation
of "honoraria" to payments for expressive activities, as opposed to
other services that a Government employee might perform in his or
her spare time, requires a justification far stronger than the mere
speculation
456
about serious harms advanced by the Government. Finally, the
regulations' exclusions from the coverage of the statutory terms
"appearance, speech or article" of a wide variety of performances
and writings that would normally appear to have no nexus with an
employee's job are more consistent with the presumption that the
federal work force consists of dedicated and honorable civil
servants than with the honoraria ban's dubious application not
merely to policymakers, whose loss of honoraria was offset by a
salary increase, but to all Executive Branch employees below grade
GS-16. Pp.470-477.
(c) Insofar as the judgment below grants relief to senior
federal executives who are not parties to this case, it is reversed
as overinclusive. However, in light of this Court's obligation to
avoid judicial legislation and its inability to correctly identify
the exact terms of any nexus requirement that Congress would have
adopted in a more limited honoraria ban, the Court refuses to
modify the remedy further by crafting such a nexus requirement. Pp.
477-480.
990 F.2d
1271, affirmed in part, reversed in part, and remanded.
STEVENS, J., delivered the opinion of the Court, in which
KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J.,
filed an opinion concurring in the judgment in part and dissenting
in part,
post, p. 480. REHNQUIST, C. J., filed a dissenting
opinion, in which SCALIA and THOMAS, JJ., joined,
post, p.
489.
Deputy Solicitor General Bender argued the cause for the United
States. With him on the briefs were Solicitor General Days,
Assistant Attorney General Hunger, Michael R. Dreeben, John C.
Hoyle, and Alfred Mollin.
Gregory O'Duden argued the cause for respondents.
With him on the brief were Elaine Kaplan, Barbara A. Atkin, Mark
D. Roth, Anne Wagner, John Vanderstar, Steven R. Shapiro, and
Arthur B. Spitzer.
*
*Stephen F.
Black and
W Hardy Callcott
filed a brieffor Common Cause as
amicus curiae urging
reversal.
Briefs of amici curiae urging affirmance were filed for the
Freedom to Read Foundation et al. by R. Bruce Rich, Paul M. Smith,
Bruce
J. Ennis, Jr., Julie M. Carpenter, Elliot M. Mincberg,
and Lawrence S. Ottinger; for Public Citizen, Inc., by Alan B.
Morrison; for the Senior Executives Association by George
J.
Shaw, Jr., and William L. Bransford; and for Peter Bollen by
Stephen S. Ostrach.
457
JUSTICE STEVENS delivered the opinion of the Court.
In 1989 Congress enacted a law that broadly prohibits federal
employees from accepting any compensation for making speeches or
writing articles. The prohibition applies even when neither the
subject of the speech or article nor the person or group paying for
it has any connection with the employee's official duties. We must
decide whether that statutory prohibition comports with the
Constitution's command that "Congress shall make no law ...
abridging the freedom of speech." We hold that it does not.
I
In 1967 Congress authorized the appointment every four years of
a special Commission on Executive, Legislative, and Judicial
Salaries, whose principal function would be to recommend
appropriate levels of compensation for the top positions in all
three branches of the Federal Government. Each of the first five
Quadrennial Commissions recommended significant salary increases,
but those recommendations went largely ignored. The Report of the
1989 Quadrennial Commission, however, was instrumental in leading
to the enactment of the Ethics Reform Act of 1989,1 which contains
the provision challenged in this case.
The 1989 Quadrennial Commission's report noted that inflation
had decreased the salary levels for senior Government officials,
measured in constant dollars, by approximately 35% since 1969. The
report
"also found that because their salaries are so inadequate, many
members of Congress are supplementing their official compensation
by accepting substantial amounts of
1103 Stat. 1760, 5 U. S. C. App. § 101
et seq. (1988 ed.,
Supp. V). The 1989 statute is a comprehensive amendment of the
Ethics in Government Act of 1978, 92 Stat. 1824. The provisions of
the Act governing outside income, including honoraria, are codified
at 5 U. S. C. App. § 501
et seq. (1988 ed., Supp. V).
458
'honoraria' for meeting with interest groups which desire to
influence their votes. Albeit to a less troubling extent, the
practice of accepting honoraria also extends to top officials of
the Executive and Judicial branches." Fairness for Our Public
Servants: Report of The 1989 Commission on Executive, Legislative
and Judicial Salaries vi (Dec. 1988).
Accordingly, the Commission recommended that "salary levels for
top officials be set at approximately the same amount in constant
dollars" as those in effect in 1969 and further that "Congress
enact legislation abolishing the practice of accepting honoraria in
all three branches."
Ibid.
The President's Commission on Federal Ethics Law Reform
subsequently issued a report that endorsed the Quadrennial
Commission's views. The President's Commission recommended enacting
a ban on receipt of honoraria "by all officials and employees in
all three branches of government." To Serve With Honor: Report of
the President's Commission on Federal Ethics Law Reform 36 (Mar.
1989). Explaining the breadth of its proposal, it added:
"In recommending this ban, we also recognize, as did the
Quadrennial Commission, that the statutory definition of honoraria
must be broad enough to- 'close present and potential loopholes
such as receipt of consulting, professional or similar fees;
payments for serving on boards; travel; sport, or other
entertainment expenses not reasonably necessary for the appearance
involved; or any other benefit that is the substantial equivalent
of an honorarium.'" Ibid. (quoting Fairness for Our Public
Servants, at 24).
Although not adopted in their entirety, the two Commissions'
recommendations echo prominently in the Ethics Reform Act of 1989.
Section 703 of that Act provided a 25% pay increase to Members of
Congress, federal judges, and
459
certain high-level Executive Branch employees above the salary
grade GS-15.2 See 103 Stat. 1768. Another section-the one at issue
here-amended § 501(b) of the Ethics in Government Act of 1978 to
create an "Honoraria Prohibition," which reads: "An individual may
not receive any honorarium while that individual is a Member,
officer or employee."
Id., at 1760.
Section 505 of the Ethics Reform Act defined "officer or
employee" to include nearly all employees of the Federal Government
and "Member" to include any Representative, Delegate, or Resident
Commissioner to Congress. The Congressional Operations
Appropriations Act, 1992, adopted in 1991,3 extended both the
salary increase and the prohibition against honoraria to the
Senate. The 1989 Act defined "honorarium" to encompass any
compensation paid to a Government employee for "an appearance,
speech or article." 4 The 1992 Appropriations Act amended that
definition to exclude any
series of appearances, speeches,
or articles unrelated to the employee's official duties or status.
The definition now reads as follows:
"(3) The term 'honorarium' means a payment of money or any thing
of value for an appearance, speech
2 The General Schedule, abbreviated "GS," is the basic pay
schedule for employees of the Federal Government. 5 U. S. C. § 5332
(1988 ed. and Supp. V). The Executive Branch positions to which the
statute gave the salary increase are on the Executive Schedule, a
separate pay scale above the General Schedule. See 103 Stat.
1768.
3105 Stat. 447, 5 U. S. C. § 5318 note (1988 ed., Supp. V).
4 The original definition read as follows: "(3) The term
'honorarium' means a payment of money or any thing of value for an
appearance, speech or article by a Member, officer or employee,
excluding any actual and necessary travel expenses incurred by such
individual (and one relative) to the extent that such expenses are
paid or reimbursed by any other person, and the amount otherwise
determined shall be reduced by the amount of any such expenses to
the extent that such expenses are not paid or reimbursed." 103
Stat. 1761,1762.
460
or article (including a series of appearances, speeches, or
articles if the subject matter is directly related to the
individual's official duties or the payment is made because of the
individual's status with the Government) by a Member, officer or
employee, excluding any actual and necessary travel expenses
incurred by such individual (and one relative) to the extent that
such expenses are paid or reimbursed by any other person, and the
amount otherwise determined shall be reduced by the amount of any
such expenses to the extent that such expenses are not paid or
reimbursed." 5 U. S. C. App. § 505(3) (1988 ed., Supp. V).
Section 503(2) of the Ethics Reform Act provides that the
statutory provisions governing honoraria for employees of the
Executive Branch shall be subject to rules and regulations issued
by the Office of Government Ethics (OGE) and administered by
designated agency ethics officials. 5 CFR § 2636.201
et seq.
(1994). OGE's regulations permit reimbursement of certain expenses
associated with appearances, speeches, and articles. The
regulations also confine the reach of each of those terms. Thus, a
performance using "an artistic, athletic or other such skill or
talent" is not an "appearance"; reading a part in a play or
delivering a sermon is not a "speech"; and works of "fiction,
poetry, lyrics, or script" are not "article[s]." §§ 2636.203(b),
(d). The regulations permit teaching a course involving multiple
presentations at an accredited program or institution.
The Attorney General may enforce the prohibition against
honoraria by a civil action to recover a penalty of not more than
the larger of $10,000 or the amount of the honorarium. If an
employee has accepted an honorarium in good-faith reliance on an
opinion of either the OGE or the ethics officer of her employing
agency, she is not subject to the civil penalty. 5 U. S. C. App. §
504 (1988 ed., Supp. V).
461
II
Two unions and several career civil servants employed full time
by various Executive departments and agencies filed suit in the
United States District Court for the District of Columbia to
challenge the constitutionality of the honoraria ban. Pursuant to a
stipulation with the Government, the District Court certified
respondent National Treasury Employees Union as the representative
of a class composed of all Executive Branch employees "below grade
GS-16, whobut for 5 U. S. C. app. 501(b)-would receive 'honoraria,'
as defined in 5 U. S. C. app. 505(3)." App. 124-125.5 All of the
individual respondents save one are members of the class; the
exception is a grade GS-16 lawyer for the Nuclear Regulatory
Commission who has published articles about Russian history.
Each of the individual respondents alleges that he or she has in
the past received compensation for writing or speaking on various
topics in full compliance with earlier ethics regulations. The
record contains a number of affidavits describing respondents' past
activities that the honoraria ban would now prohibit. A mail
handler employed by the Postal Service in Arlington, Virginia, had
given lectures on the Quaker religion for which he received small
payments that were "not much, but enough to supplement my income in
a way that makes a difference."
Id., at 47. An aerospace
engineer employed at the Goddard Space Flight Center in Greenbelt,
Maryland, had lectured on black history for a fee of $100 per
lecture.
Id., at 63. A microbiologist at the Food and Drug
Administration had earned almost $3,000 per year writing articles
and making radio and television appearances reviewing dance
performances.
Id., at 77. A tax examiner
5 In 1993, employees in the certified class earned between
$11,903 (GS-l, step 1) and $86,589 (GS-15, step 10). 5 U. S. C.
§5332 (1988 ed., Supp. V). According to OPM, the mean grade was
GS-9, which paid workers between $27,789 and $36,123. Office of
Personnel Management, Demographic Profile of the Federal Workforce,
App. 2, p. 79 (Sept. 1992).
462
employed by the Internal Revenue Service in Ogden, Utah, had
received comparable pay for articles about the environment.
Id., at 67.
The District Court granted respondents' motion for summary
judgment, held the statute "unconstitutional insofar as it applies
to Executive Branch employees of the United States government," and
enjoined the Government from enforcing the statute against any
Executive Branch employee. 788 F. Supp. 4, 13-14 (1992). The court
acknowledged that Congress' interest in promoting "the integrity
of, and popular confidence in and respect for, the federal
government" is "vital."
Id., at 9. The court also
characterized § 501(b) as a content-neutral restriction on the
speech of "government employees who, as a condition of their
employment, have relinquished certain First Amendment prerogatives
.... "
Id., at 10. Nevertheless, the court concluded that
"regulatory legislation having the effect of suppressing freedom of
expression to the slightest degree" could "go no farther than
necessary to accomplish its objective."
Ibid. The court
found the statute both overinclusive, because it restricts so much
speech, and underinclusive, because it prohibits honoraria for some
forms of speech and not others.
Id., at 11. Concluding from
the legislative history that Congress had been concerned mainly
about appearances of impropriety among its own Members, the court
found the application of § 501(b) to the parties before it
severable from the remainder of the Act.
The Court of Appeals affirmed.
990 F.2d
1271 (CADC 1993). It noted that, even though § 501(b) prohibits
no speech, the denial of compensation places a significant burden
on employees. The court held that the Government's strong,
undisputed interest "in protecting the integrity and efficiency of
public service and in avoiding even the appearance of impropriety
created by abuse of the practice of receiving honoraria" does not
justify a substantial burden on speech that does not advance that
interest.
Id., at 1274. The court emphasized that the
Government's failure as to
463
many respondents to identify "some sort of nexus between the
employee's job and either the subject matter of the expression or
the character of the payor" undercut its proffered concern about
actual or apparent improprieties.
Id., at 1275.6 Stressing
the absence of evidence of either corruption or the appearance of
corruption among lower level federal employees receiving honoraria
with no connection to their employment, the Court of Appeals
concluded that the Government had failed to justify the ban's
burden on their speech.
Id., at 1277. The court rejected the
Government's argument that administrative and enforcement
difficulties justify § 501(b)'s broad prophylactic rule.7
6 The Court of Appeals acknowledged that "even some of the
plaintiffs receive payments that might at least raise an eyebrow,"
citing a business editor for the Voice of America who received
payment for business analysis and a GS-7 "tax examining assistant"
as to whom payment of any honorarium might raise some concern "[i]n
view of the universality of citizens' subjection to the Internal
Revenue Service." 990 F. 2d, at 12751276. Another plaintiff whose
expressive activities appear to come within a nexus to Government
employment is the Treasury Employees' Union itself, which complains
that the honoraria ban has hindered publication of its chapters'
newsletters. App. 58-62.
7 "As summarized in testimony before the Senate Committee on
Governmental Affairs, the prior regulations allowed honoraria so
long as the speaker or writer held a rank lower than GS-16 and all
of the following questions could be answered negatively:
"(1) Is the honorarium offered for carrying out government
duties or for an activity that focuses specifically on the
employing agency's responsibilities, policies and programs?
"(2) Is the honorarium offered to the government employee or
family member because of the official position held by the
employee?
"(3) Is the honorarium offered because of the government
information that is being imparted?
"(4) Is the honorarium offered by someone who does business with
or wishes to do business with the employee in his or her official
capacity?
"(5) Were any government resources or time used by the employee
to produce the materials for the article or speech or make the
appearance? "S. Rep. No. 29, 102d Cong., 1st Sess., at 8 (1991).
While some of the limits may have an amorphous quality about them
(such as the one purporting to probe the motive of the honorarium's
offeror), there appears no
464
Turning to the question of remedy, the Court of Appeals agreed
with the District Court that § 501(b)'s application to Executive
Branch employees is severable from the remainder of the statute.
The legislative history convinced the court that Congress had
adopted the honoraria ban primarily in response to the growing
concern about payments to its own Members; moreover, the statute
itself disclosed that "the honorarium ban was adopted as part of a
package of which a key ingredient was a sharp increase in the
salary of members of Congress, judges, and a limited class of
senior executive branch officials."
Id., at 1278 (citation
omitted). Accordingly, the court fashioned a remedy that, in
effect, rewrote the statute by eliminating the words "officer or
employee" from § 501(b)
"except in so far as those terms
encompass members of Congress, officers and employees of Congress,
judicial officers and judicial employees."
Id., at
1279.8
Over two dissents, the Court of Appeals denied a petition for
rehearing en banco
3 F.3d
1555 (1993). We granted certiorari. 511 U. S. 1029 (1994).
III
Federal employees who write for publication in their spare time
have made significant contributions to the marketplace of ideas.
They include literary giants like Nathaniel Hawthorne and Herman
Melville, who were employed by the Customs Service; Walt Whitman,
who worked for the De-
actual experience of difficulty, and one can hypothesize rules
of thumb that could constrain government discretion." 990 F. 2d, at
1276-1277.
8 In dissent, Judge Sentelle maintained that the statute was
constitutional. He also objected to the court's remedy. In his
opinion, the majority's severance of the statutory provisions
relating to the Executive Branch was "nothing less than judicial
legislation," 990 F. 2d, at 1296 (citation and internal quotation
marks omitted), and its reluctance to invalidate the honoraria ban
as to Members of Congress would have been "better served by
striking the statute down as applied" to the plaintiff class.
Id., at 1298.
465
partments of Justice and Interior; and Bret Harte, an employee
of the mint.9 Respondents have yet to make comparable contributions
to American culture, but they share with these great artists
important characteristics that are relevant to the issue we
confront.
Even though respondents work for the Government, they have not
relinquished "the First Amendment rights they would otherwise enjoy
as citizens to comment on matters of public interest."
Pickering v.
Board of Ed. of Township High School Dist.
205, Will Cty., 391 U. S. 563, 568
(1968). They seek compensation for their expressive activities in
their capacity as citizens, not as Government employees. They claim
their employment status has no more bearing on the quality or
market value of their literary output than it did on that of
Hawthorne or Melville. With few exceptions, the content of
respondents' messages has nothing to do with their jobs and does
not even arguably have any adverse impact on the efficiency of the
offices in which they work. They do not address audiences composed
of co-workers or supervisors; instead, they write or speak for
segments of the general public. Neither the character of the
authors, the subject matter of their expression, the effect of the
content of their expression on their official duties, nor the kind
of audiences they address has any relevance to their
employment.
In
Pickering and a number of other cases we have
recognized that Congress may impose restraints on the job-related
speech of public employees that would be plainly unconstitutional
if applied to the public at large. See,
e. g., Snepp v.
United States, 444 U. S. 507 (1980).
When a court is required to determine the validity of such a
restraint, it must "arrive at a balance between the interests of
the [employee],
9See A. Turner, Nathaniel Hawthorne: A Biography 170-187 (1980);
N. Arvin, Herman Melville 259-260 (1950); G. Allen, The Solitary
Singer:
A Critical Biography of Walt Whitman 319-321, 408 (1985); H.
Merwin, The Life of Bret Harte 33-34 (1911).
466
as a citizen, in commenting upon matters of public concern and
the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its
employees."
Pickering, 391 U. S., at 568.
In such cases, which usually have involved disciplinary actions
taken in response to a government employee's speech, we have
applied
Pickering's balancing test only when the employee
spoke
"as a citizen upon matters of public concern" rather
than
"as an employee upon matters only of personal
interest."
Connick v.
Myers, 461 U. S. 138, 147 (1983)
(emphasis added). Thus, private speech that involves nothing more
than a complaint about a change in the employee's own duties may
give rise to discipline without imposing any special burden of
justification on the government employer.
Id., at 148-149.
If, however, the speech does involve a matter of public concern,
the government bears the burden of justifying its adverse
employment action.
Rankin v.
McPherson, 483 U. S. 378, 388
(1987); 10 see also
Waters v.
Churchill, 511 U. S. 661, 674
(1994). Respondents' expressive activities in this case fall within
the protected category of citizen comment on matters of public
concern rather than employee comment on matters related to personal
status in the workplace. The speeches and articles for which they
received compensation in the past were addressed to a public
audience, were made outside the workplace, and involved content
largely unrelated to their Government employment.
The sweep of § 501(b) makes the Government's burden heavy.
Unlike
Pickering and its progeny, this case does not
10 Rankin is the only case in which we directly applied
the
Pickering balance to speech whose content had nothing to
do with the workplace. The employee in that case was fired based on
a statement in the workplace about an assassination attempt on the
President. Satisfied that the statement was not a threat to kill
the President, which the First Amendment would not have protected,
we concluded that the statement involved a matter of public concern
and that the firing violated the First Amendment. 483 U. S., at
386-387, 392.
467
involve a
post hoc analysis of one employee's speech and
its impact on that employee's public responsibilities. Cf.
Waters v.
Churchill, 511 U. S. 661 (1994);
Rankin v.
McPherson, 483 U. S. 378 (1987);
Connick v.
Myers, 461 U. S. 138 (1983);
Perry v.
Sindermann, 408 U. S. 593 (1972).
Rather, the Government asks us to apply
Pickering to
Congress' wholesale deterrent to a broad category of expression by
a massive number of potential speakers.u In
Civil Service
Comm'n v.
Letter Carriers, 413 U. S. 548, 564
(1973), we established that the Government must be able to satisfy
a balancing test of the
Pickering form to maintain a
statutory restriction on employee speech. Because the discussion in
that case essentially restated in balancing terms our approval of
the Hatch Act in
Public Workers v.
Mitchell, 330 U. S. 75 (1947), we
did not determine how the components of the
Pickering
balance should be analyzed in the context of a sweeping statutory
impediment to speech.12
11 The dissent seems to regard the honoraria ban as less onerous
than our applications of
Pickering to the speech of
individual employees because the ban "is unrelated to the message
or the viewpoint expressed by the government employee."
Post, at 500. Our
Pickering cases only permit the
Government to take adverse action based on employee speech that has
adverse
effects on "the interest of the State, as an
employer, in promoting the efficiency of the public services it
performs through its employees." 391 U. S., at 568. That certain
messages may be more likely than others to have such adverse
effects does not render
Pickering's restriction on speech
viewpoint based. Even a teacher's persistent advocacy
infavor of the actions of the school board, cf.
ibid., or an employee's exhortation
against an
attempt on the President's life, cf.
Rankin v.
McPherson,
483 U. S. 378 (1987), could provide proper grounds for adverse
action if the government employer could demonstrate that such
expression disrupted workplace efficiency. The honoraria ban as
applied to respondents burdens speech far more than our past
applications of
Pickering because the ban deters an enormous
quantity of speech before it is uttered, based only on speculation
that the speech might threaten the Government's interests.
12 Two decades ago, a three-Justice plurality invoked
Pickering in the course of upholding against vagueness and
overbreadth challenges a provision of the Lloyd-La Follette Act, 5
U. S. C. § 7501(a) (1970 ed.), that allowed the discharge of
certain federal employees "only for such cause as
468
We normally accord a stronger presumption of validity to a
congressional judgment than to an individual executive's
disciplinary action. See
Turner Broadcasting System, Inc. v.
FCC, 512 U. S.
622, 671, and n. 2 (1994) (STEVENS, J., concurring in part and
concurring in judgment). The widespread impact of the honoraria
ban, however, gives rise to far more serious concerns than could
any single supervisory decision. See
City of Ladue v.
Gilleo, 512 U.
S. 43, 54-55 (1994).13 In addition, unlike an adverse action
taken in response to actual speech, this ban chills potential
speech before it happens. Cf.
Near v.
Minnesota ex rel.
Olson, 283 U. S. 697 (1931). For these reasons, the
Government's burden is greater with respect to this statutory
restriction on expression than with respect to an isolated
disciplinary action. The Government must show that the interests of
both potential audiences and a vast group of present and future
employees in a broad range of present and future expression are
outweighed by that expression's "necessary impact on the actual
operation" of the Government.
Pickering, 391 U. S., at
571.
Although § 501(b) neither prohibits any speech nor discriminates
among speakers based on the content or viewpoint of their messages,
its prohibition on compensation unquestionably imposes a
significant burden on expressive activity. See
Simon &
Schuster, Inc. v.
Members of N.
Y.
will promote the efficiency of the [civil] service."
Arnett v.
Kennedy, 416 U. S. 134, 160-161 (1974). The
plaintiff in that case stood accused of several work-related
misdeeds, including making false and defamatory statements against
co-workers. The plurality characterized the employee's false
accusation that his superiors had accepted a bribe as "not
protected by the First Amendment."
Id., at 158-159. Thus,
the
Arnett plurality merely cited
Pickering to
support a general statute's
post hoc application to a single
employee's arguably unprotected speech.
13 As of September 30, 1992, the Federal Government employed
1,680,516 workers between grades GS-1 and GS-15. Office of
Personnel Management, Demographic Profile of the Federal Workforce,
App. 2, p. 79 (Sept. 1992).
469
State Crime Victims Bd., 502 U. S. 105 (1991); see
also
Arkansas Writers' Project, Inc. v.
Ragland,
481 U. S. 221,
227231 (1987);
Minneapolis Star &
Tribune Co. v.
Minnesota Comm'r of Revenue, 460 U. S. 575 (1983).
Publishers compensate authors because compensation provides a
significant incentive toward more expression.14 By denying
respondents that incentive, the honoraria ban induces them to
curtail their expression if they wish to continue working for the
Government.15
The ban imposes a far more significant burden on respondents
than on the relatively small group of lawmakers whose past receipt
of honoraria motivated its enactment. The absorbing and
time-consuming responsibilities of legislators and policymaking
executives leave them little opportunity for research or creative
expression on subjects unrelated to their official
responsibilities. Such officials often receive invitations to
appear and talk about subjects related to their work because of
their official identities. In contrast, invitations to
rank-and-file employees usually depend only on the market value of
their messages. The honoraria ban is unlikely to reduce
significantly the number of appearances by high-ranking officials
as long as travel expense reimbursement for the speaker and one
relative is available as an alternative form of remuneration. See
supra, at 460. In
14 This proposition is self-evident even to those who do not
fully accept Samuel Johnson's cynical comment: '''No man but a
blockhead ever wrote, except for money.''' J. Boswell, Life of
Samuel Johnson LL. D. 302 (R. Hutchins ed. 1952).
15 Several respondents indicated that the ban would compel them
to discontinue their previously compensated expressive activities.
App. 46, 5051, 55, 66, 69, 74. In at least one case, a newspaper
refused to continue publishing a respondent's work if he could not
accept pay for it.
Id., at 78. Despite the OGE regulations'
provision for recovery of certain expenses related to expressive
activity, see
supra, at 460, several respondents also
reported that the ban would prevent or complicate their recovering
other necessary expenses, creating a further disincentive to speak
and write. App. 45-46, 55-56, 65, 74-75, 81, 84, 88.
470
contrast, the denial of compensation for lower paid,
nonpolicymaking employees will inevitably diminish their expressive
output.
The large-scale disincentive to Government employees' expression
also imposes a significant burden on the public's right to read and
hear what the employees would otherwise have written and said. See
Virginia Bd. of Pharmacy v.
Virginia Citizens Consumer
Council, Inc., 425 U. S. 748, 756-757
(1976). We have no way to measure the true cost of that burden, but
we cannot ignore the risk that it might deprive us of the work of a
future Melville or Hawthorne.16 The honoraria ban imposes the kind
of burden that abridges speech under the First Amendment.
IV
Because the vast majority of the speech at issue in this case
does not involve the subject matter of Government employment and
takes place outside the workplace, the Government is unable to
justify § 501(b) on the grounds of immediate workplace disruption
asserted in
Pickering and the cases that followed it. Cf.,
e. g., Waters, 511 U. S., at 664. Instead, the Government
submits that the ban comports with the First Amendment because the
prohibited honoraria were "reasonably deemed by Congress to
interfere with the efficiency of the public service."
Public
Workers v.
Mitchell, 330 U. S. 75, 101
(1947).
In
Mitchell we upheld the prohibition of the Hatch Act, 5
U. S. C. § 7324(a)(2), on partisan political activity by all
classified federal employees, including, for example, a skilled
me-
16 These authors' familiar masterworks would survive the
honoraria ban as currently administered. Besides exempting all
books, the OGE regulations protect fiction and poetry from the
ban's coverage, see
infra, at 476, although the statute's
language is not so clear. But great artists deal in fact as well as
fiction, and some deal in both. See,
e. g., Allen,
The Solitary Singer, at 41-55 (discussing Walt Whitman's speeches
and nonfiction newspaper writing).
471
chanic at the mint named Poole who had no policymaking
authority. We explained that "[t]here are hundreds of thousands of
United States employees with positions no more influential upon
policy determination than that of Mr. Poole. Evidently what
Congress feared was the cumulative effect on employee morale of
political activity by all employees who could be induced to
participate actively." 330 U. S., at 10l. In
Civil Service
Comm'n v.
Letter Carriers, 413 U. S. 548 (1973), we
noted that enactment of the Hatch Act in 1939 reflected "the
conviction that the rapidly expanding Government work force should
not be employed to build a powerful, invincible, and perhaps
corrupt political machine."
Id., at 565. An equally
important concern was
"to further serve the goal that employment and advancement in
the Government service not depend on political performance, and at
the same time to make sure that Government employees would be free
from pressure and from express or tacit invitation to vote in a
certain way or perform political chores in order to curry favor
with their superiors rather than to act out their own beliefs."
Id., at 566.
Thus, the Hatch Act aimed to
protect employees' rights,
notably their right to free expression, rather than to restrict
those rights.17 Like the Hatch Act, the honoraria ban affects
hundreds of thousands of federal employees. Unlike partisan
political activity, however, honoraria hardly appear to threaten
employees' morale or liberty. Moreover, Congress effectively
designed the Hatch Act to combat demonstrated ill effects of
Government employees' partisan political activities. In contrast,
the Government has failed to show how it serves the interests it
asserts by applying the honoraria ban to respondents.
17Cf.
Arnett, 416 U. S., at 159 (Lloyd-La Follette Act's
purpose was "to give myriad different federal employees performing
widely disparate tasks a common standard of job protection").
472
The Government's underlying concern is that federal officers not
misuse or appear to misuse power by accepting compensation for
their unofficial and nonpolitical writing and speaking activities.
This interest is undeniably powerful, but the Government cites no
evidence of misconduct related to honoraria in the vast rank and
file of federal employees below grade GS-16.18 Instead of a concern
about the "cumulative effect" of a widespread practice that
Congress deemed to "menace the integrity and the competency of the
service,"
Mitchell, 330 U. S., at 103, the Government relies
here on limited evidence of actual or apparent impropriety by
legislators and high-level executives, together with the purported
administrative costs of avoiding or detecting lower level
employees' violations of established policies.
As both the District Court and the Court of Appeals noted, the
Government has based its defense of the ban on abuses of honoraria
by Members of Congress. 990 F. 2d, at
18 The Government cites a report of the General Accounting
Office (GAO) to support its assertion that the ban is necessary to
prevent widespread improprieties. General Accounting Office, Report
to the Chairman, Subcommittee on Federal Services, Post Office and
Civil Service of the Senate Committee on Governmental Affairs,
Employee Conduct Standards: Some Outside Activities Present
Conflict-of-Interest Issues (Feb. 1992) (hereinafter GAO Report);
see Brief for United States 22-23. The GAO Report found that ethics
officials at several large agencies had approved 545 outside
speaking activities between 1988 and 1990. GAO Report 8. Over
one-third of the total approved activities dealt with subject
matter, or involved duties, similar to the employees' Government
work.
Id., at 58. The GAO Report's conclusions and
recommendations dealt exclusively with the problems of outside
activities "that were focused specifically on the agencies'
responsibilities and/or related directly to the employees' duties."
Id., at 13-14. The GAO Report's examples of instances that
gave rise to serious concerns about real or apparent impropriety
were two cases in which high-level employees (a chemist and a
physicist) engaged in consulting activities related to the subject
matter of their jobs.
Id., at 10. Its 112 pages contain not
one mention of any real or apparent impropriety related to a lower
level employee or to any employee engaged in writing or speaking or
in any conduct unrelated to his or her Government job.
473
1278; 788 F. Supp., at 13.19 Congress reasonably could assume
that payments of honoraria to judges or high-ranking officials in
the Executive Branch might generate a similar appearance of
improper influence. Congress could not, however, reasonably extend
that assumption to all federal employees below grade GS-16, an
immense class of workers with negligible power to confer favors on
those who might pay to hear them speak or to read their articles. A
federal employee, such as a supervisor of mechanics at the mint,
might impair efficiency and morale by using political criteria to
judge the performance of his or her staff. But one can envision
scant harm, or appearance of harm, resulting from the same
employee's accepting pay to lecture on the Quaker religion or to
write dance reviews.
Although operational efficiency is undoubtedly a vital
governmental interest,
e. g., Rankin, 483 U.
S., at 384, several features of the honoraria ban's text cast
serious doubt on the Government's submission that Congress
perceived honoraria as so threatening to the efficiency of the
entire federal service as to render the ban a reasonable response
to the threat. Cf.
Waters, 511 U. S., at 677-678. The first
is the rather strange parenthetical reference to "a series of
appearances, speeches, or articles" that the 1991 amendment
inserted in the definition of the term "honorarium." The amended
definition excludes such a series from the prohibited category
unless "the subject matter is directly related to the individual's
official duties or the payment is made because of the individual's
status with the Government." See
supra, at 460. In other
words, accepting pay for a
series of articles is prohibited
if, and only if, a nexus exists between the author's employment and
either the subject matter of the expression or the iden-
19 Portending this reliance, the primary discussion of honoraria
in the 1989 Quadrennial Commission's Report appeared as a subtopic
in the "Legislative Branch" section. Fairness for Our Public
Servants: The Report of The 1989 Commission on Executive,
Legislative and Judicial Salaries 24 (Dec. 1988).
474
tity of the payor. For an
individual article or speech,
in contrast, pay is taboo even if neither the subject matter nor
the payor bears any relationship at all to the author's duties.
Congress' decision to provide a total exemption for all
unrelated series of speeches undermines application of the ban to
individual speeches and articles with no nexus to Government
employment. Absent such a nexus, no corrupt bargain or even
appearance of impropriety appears likely. The Government's only
argument against a general nexus limitation is that a wholesale
prophylactic rule is easier to enforce than one that requires
individual nexus determinations. See Brief for United States 21-23.
The nexus limitation for series, however, unambiguously reflects a
congressional judgment that agency ethics officials and the OG E
can enforce the statute when it includes a nexus test. A blanket
burden on the speech of nearly 1.7 million federal employees
requires a much stronger justification than the Government's
dubious claim of administrative convenience.
The definition's limitation of "honoraria" to expressive
activities also undermines the Government's submission that the
breadth of § 501 is reasonably necessary to protect the efficiency
of the public service. Both Commissions that recommended the ban
stressed the importance of defining honoraria in a way that would
close "potential loopholes such as receipt of consulting,
professional or similar fees; payments for serving on boards;
travel; sport, or other entertainment expenses not reasonably
necessary for the appearance involved; or any other benefit that is
the substantial equivalent of an honorarium." See
supra, at
458. Those recommendations reflected a considered judgment that
compensation for "an appearance, speech or article" poses no
greater danger than compensation for other services that a
Government employee might perform in his or her spare time.20
Congress,
20 The Government relies heavily on the reports of both the
Quadrennial Commission and the President's Commission in defending
§ 501(b). See Brief for United States 3-5, 19-20.
475
however, chose to restrict only expressive activities. One might
reasonably argue that expressive activities, because they occupy a
favored position in the constitutional firmament, should be exempt
from even a comprehensive ban on outside income. Imposing a greater
burden on speech than on other off-duty activities assumed to pose
the same threat to the efficiency of the federal service is, at
best, anomalous.
The fact that § 501 singles out expressive activity for special
regulation heightens the Government's burden of justification. See
Minneapolis Star, 460 U. S., at 583. As we noted last Term
when reviewing the Federal Communications Commission's must-carry
rules for cable television systems, "[w]hen the Government defends
a regulation on speech as a means to redress past harms or prevent
anticipated harms, it must do more than simply 'posit the existence
of the disease sought to be cured.' ... It must demonstrate that
the recited harms are real, not merely conjectural, and that the
regulation will in fact alleviate these harms in a direct and
material way."
Turner Broadcasting System, 512 U. S., at
664. That case dealt with a direct regulation of communication by
private entities, but its logic applies as well to the special
burden § 501 imposes on the expressive rights of the multitude of
employees it reaches. As Justice Brandeis reminded us, a
"reasonable" burden on expression requires a justification far
stronger than mere speculation about serious harms. "Fear of
serious injury cannot alone justify suppression of free speech and
assembly. Men feared witches and burnt women .... To justify
suppression of free speech there must be reasonable ground to fear
that serious evil will result if free speech is practiced."
Whitney v.
California, 274 U. S. 357, 376 (1927)
(concurring opinion)P
21 "[W]e have consistently given greater deference to government
predictions of harm used to justify restriction of employee speech
than to predictions of harm used to justify restrictions on the
speech of the public at large."
Waters v.
Churchill,
511 U. S. 661,
673 (1994) (plurality opinion). However, the cases in which we have
done so generally have in-
476
The Government has not persuaded us that § 501(b) is a
reasonable response to the posited harms.
We also attach significance to the aGE regulations that limit
the coverage of the statutory terms "appearance, speech or
article." 5 CFR § 2636.203 (1994). The regulations exclude a wide
variety of performances and writings that would normally appear to
have no nexus with an employee's job, such as sermons, fictional
writings, and athletic competitions, see
supra, at 460,
countermanding the Commissions' recommendation that an even more
inclusive honoraria ban would be appropriate. See
supra, at
458. The exclusions, of course, make the task of the aGE and agency
ethics officials somewhat easier, but they "diminish the
credibility of the Government's rationale" that paying lower level
employees for speech entirely unrelated to their work jeopardizes
the efficiency of the entire federal service.
City of
Ladue, 512 U. S., at 52. We recognize our obligation to defer to
considered congressional judgments about matters such as
appearances of impropriety, but on the record of this case we must
attach greater weight to the powerful and realistic presumption
that the federal work force consists of dedicated and honorable
civil servants. The exclusions in the aGE regulations are more
consistent with that presumption than
volved isolated instances of speech that had already happened.
See,
e. g., Connick v.
Myers, 461 U. S. 138, 151-152
(1983). We deferred to the Government's predictions in upholding
the Hatch Act, see
Public Workers v.
Mitchell,
330 U. S. 75,
100-101 (1947), but that statute's employeeprotective rationale
provided much stronger justification for a proscriptive rule than
does the Government's interest in workplace efficiency. See
supra, at 470-471. Deferring to the Government's speculation
about the pernicious effects of thousands of articles and speeches
yet to be written or delivered would encroach unacceptably on the
First Amendment's protections. Cf.
Federal Election Comm'n
v.
National Conservative Political Action Comm., 470 U. S. 480, 498 (1985)
(statute restricting political contributions violated First
Amendment where "exchange of political favors for uncoordinated
expenditures remain[ed] a hypothetical possibility and nothing
more").
477
with the honoraria ban's dubious application not merely to
policymakers, whose loss of honoraria was offset by a salary
increase, but to all Executive Branch employees below grade GS-16
as well.
These anomalies in the text of the statute and regulations
underscore our conclusion: The speculative benefits the honoraria
ban may provide the Government are not sufficient to justify this
crudely crafted burden on respondents' freedom to engage in
expressive activities. Section 501(b) violates the First
Amendment.
V
After holding § 501(b) invalid because it was not as carefully
tailored as it should have been, the Court of Appeals approved a
remedy that is itself arguably overinclusive. The relief granted by
the District Court and upheld by the Court of Appeals enjoined
enforcement of the entire honoraria ban as applied to the entire
Executive Branch of the Government.22 That injunction provides
relief to senior executives who are not parties to this case. It
also prohibits enforcement of the statute even when an obvious
nexus exists between the employee's job and either the subject
matter of his or her expression or the interest of the person
paying for it. As an alternative to its request for outright
reversal, the Government asks us to modify the judgment by
upholding the statute as it applies, first, to employees not party
to this action and, second, to situations in which a nexus is
present.
For three reasons, we agree with the Government's first
suggestion-that the relief should be limited to the parties before
the Court. First, although the occasional case requires us to
entertain a facial challenge in order to vindicate
22 The Court of Appeals did not reach the ban's applications to
employees of the Legislative and Judicial Branches because its
analysis of the legislative history convinced it that, had Congress
believed the ban unconstitutional as to the Executive Branch, it
still would have applied the ban to the other branches. 990 F. 2d,
at 1279.
478
a party's right not to be bound by an unconstitutional statute,
see,
e. g., Secretary of State of Md. v.
Joseph H.
Munson Co., 467 U. S. 947, 965-967,
and n. 13 (1984), we neither want nor need to provide relief to
nonparties when a narrower remedy will fully protect the litigants.
See
Board of Trustees of State Univ. of N.
Y. v.
Fox, 492 U. S.
469, 484-485 (1989). In this case, granting full relief to
respondentswho include all Executive Branch employees below grade
GS-16-does not require passing on the applicability of § 501(b) to
Executive Branch employees above grade GS-15, including those
high-level employees who received a 25% salary increase that
offsets the honoraria ban's disincentive to speak and write.
Second, the Government conceivably might advance a different
justification for an honoraria ban limited to more senior
officials, thus presenting a different constitutional question than
the one we decide today.23 Our policy of avoiding unnecessary
adjudication of constitutional issues, see
Ashwander v.
TV A, 297 U.
S. 288, 346-347 (1936) (Brandeis, J., concurring), therefore
counsels against determining senior officials' rights in this case.
Third, as the Court of Appeals recognized, its remedy required it
to tamper with the text of the statute,24 a practice we strive to
avoid.
23 The parties to whom the lower courts granted relief include a
single GS-16 employee. See
supra, at 461. The rationale we
have set forth for our holding does not necessarily apply to him.
However, the Government does not request, as part of its suggested
alternative to outright reversal, that we reverse the Court of
Appeals' judgment as to that one employee. Accordingly, we leave
that part of the court's judgment intact.
24 The Court of Appeals said: "We cannot, as a technical matter,
achieve the intended severance simply by striking the words
'officer or employee' from § 501(b), as that would invalidate the
ban beyond the executive branch .... However, given the far greater
congressional interest in banning honoraria for the legislative and
judicial branches, we think it a proper form of severance to strike
'officer or employee' from § 501(b)
except in so far as
those terms encompass members of Congress, officers and employees
of Congress, judicial officers and judicial employees." 990 F. 2d,
at 1279.
479
Our obligation to avoid judicial legislation also persuades us
to reject the Government's second suggestion-that we modify the
remedy by crafting a nexus requirement for the honoraria ban. We
cannot be sure that our attempt to redraft the statute to limit its
coverage to cases involving an undesirable nexus between the
speaker's official duties and either the subject matter of the
speaker's expression or the identity of the payor would correctly
identify the nexus Congress would have adopted in a more limited
honoraria ban. We cannot know whether Congress accurately reflected
its sense of an appropriate nexus in the terse, 33-word
parenthetical statement with which it exempted series of speeches
and articles from the definition of honoraria in the 1992
amendment, see
supra, at 460; in an elaborate, nearly
600word provision with which it later exempted Department of
Defense military school faculty and students from the ban; 25 or in
neither. The process of drawing a proper nexus, even more than the
defense of the statute's application to senior employees, would
likely raise independent constitutional concerns whose adjudication
is unnecessary to decide this case. Cf.
supra, at 478. We
believe the Court of Appeals properly left to Congress the task of
drafting a narrower statute.26
25 See § 542 of the National Defense Authorization Act for
Fiscal Year 1993, 106 Stat. 2413-2414.
26 The dissent condemns our refusal to rewrite the statute.
Post, at 501503. It notes that, when we considered a
challenge to a federal statute that banned expressive displays in
the Supreme Court building and on the public sidewalks around it,
we had no difficulty striking down the statute only as it applied
to the public sidewalks. See
United States v.
Grace,
461 U. S. 171,
180-183 (1983). Drawing a line between a building and sidewalks
with which we are intimately familiar, based on settled First
Amendment principles, see
id., at 180, is a relatively
simple matter. In contrast, drawing one or more lines between
categories of speech covered by an overly broad statute, when
Congress has sent inconsistent signals as to where the new line or
lines should be drawn, involves a far more serious invasion of the
legislative domain.
480
Insofar as the judgment of the Court of Appeals affirms the
injunction against enforcement of § 501(b) against respondents, it
is affirmed; insofar as it grants relief to parties not before the
Court, it is reversed. The case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
JUSTICE O'CONNOR, concurring in the judgment in part and
dissenting in part.
Although I agree that aspects of the honoraria ban run afoul of
the First Amendment, I write separately for two reasons. First, I
wish to emphasize my understanding of how our precedents, beginning
with
Pickering v.
Board of Ed. of Township High School
Dist. 205, Will Cty., 391 U. S. 563 (1968), and
culminating in its most recent application,
Waters v.
Churchill, 511
U. S. 661 (1994), direct the Court's conclusion. Second, I
write to express my disagreement with the Court's remedy, which in
my view paints with too broad a brush.
I
The time-tested
Pickering balance, most recently applied
in
Waters, provides the governing framework for analysis of
all manner of restrictions on speech by the government as employer.
Under
Pickering, the Court must balance "the interests of
the [employee], as a citizen, in commenting upon matters of public
concern and the interest of the [government], as an employer, in
promoting the efficiency of the public services it performs through
its employees." 391 U. S., at 568. In contrast to some of our prior
decisions, this case presents no threshold question whether the
speech is of public, or merely private, concern. Respondents
challenge the ban as it applies to off-hour speech bearing no nexus
to Government employment-speech that by definition does not relate
to "internal office affairs" or the employee's status as an
employee. Cf.
Connick v.
Myers, 461 U. S. 138, 149
(1983).
481
In setting out the employees' interests in this case, the Court
draws a meaningful distinction between the
ex ante
prohibition of certain kinds of speech and the
ex post
punishment of discrete, unforeseeable disturbances. See
ante, at 466-468. There is some force to the Court's
observation, because
ex ante rules, in contrast to
ex
post punishments, carry risks of overinclusiveness and
underinclusiveness. Nevertheless, reliance on the
ex ante/ex
post distinction is not a substitute for the case-by-case
application of
Pickering. There are many circumstances in
which the Government as employer is likely to prefer the
codification of its policies as workplace rules (which,
incidentally, provide notice to employees) to the ad hoc,
on-the-job reactions that have been standard fare in many of our
employment cases. In most such circumstances, the Government will
be acting well within its bounds. I see little constitutional
difference, for example, between a rule prohibiting employees from
being "'rude to customers,'" see
Waters, supra, at 673, and
the upbraiding or sanctioning of an employee
post hoc for
isolated acts of impudence. To draw the line based on a distinction
between
ex ante rules and
ex post punishments, in my
view, overgeneralizes and threatens undue interference with "the
government's mission as employer," 511 U. S., at 674.
Given the breadth and intrusiveness of the honoraria ban in this
case, however, I agree with the Court that significant weight must
be placed on the employees' side of the scale in the
Pickering balance. We recognized in
Simon &
Schuster, Inc. v.
Members of N.
Y. State Crime
Victims Bd., 502 U. S. 105, 115 (1991), that the imposition of
financial burdens may have a direct effect on incentives to speak.
See also
Minneapolis Star &
Tribune Co. v.
Minnesota Comm'r of Revenue, 460 U. S. 575, 585 (1983)
(observing that the threat of burdensome taxes "can operate as
effectively as a censor to check critical comment"). Although the
honoraria ban certainly does not curtail
all of the
non-work-related speech
482
of the nearly two million members of respondent class, it
doubtless inhibits some speech on matters of substantial public
interest. In my view, the impact of the honoraria ban upon this
class of employees' interests in speaking out as citizens, rather
than as employees, cannot be gainsaid.
The Government advances two categories of interests in support
of the honoraria ban. First, the Government submits its interests
in promoting the efficiency of public service and in avoiding the
appearance of impropriety created by abuse of the practice of
receiving honoraria. We have credited these objectives as both
salutary and significant on several occasions. See,
e. g.,
Federal Election Comm'n v.
National Right to Work Comm.,
459 U. S. 197,
210 (1982);
First Nat. Bank of Boston v.
Bellotti,
435 U. S. 765,
788, n. 26
(1978); Buckley v.
Valeo, 424 U. S. 1, 26-29 (1976).
Although they lend support to the Government's efforts to put a
stop to honoraria paid for work-related speech, these interests
have less force in justifying a ban that prohibits honoraria paid
for speech on matters wholly unrelated to the workplace. Perhaps
recognizing this, the Government maintains that it has an
additional interest in resisting evasion of its rule and sparing
administrative resources. According to the Government, apparently
innocuous payments may be made for illicit purposes, and the
difficulty inherent in distinguishing the innocuous from the
illicit mandates a broad prophylactic ban.
Balancing is difficult to undertake unless one side of the scale
is relatively insubstantial. The Government argues that the Court
should defer broadly to its determination that the benefits of the
ban outweigh its costs. The Government relies on
Waters, in
which a plurality of the Court observed that "we have consistently
given greater deference to government predictions of harm used to
justify restriction of employee speech than to predictions of harm
used to justify restrictions on the speech of the public at large."
511 U. S., at 673. But this principle has its limits, as the
Waters plu-
483
rality went on to recognize. As the magnitude of intrusion on
employees' interests rises, so does the Government's burden of
justification. Cf.
Connick, 461 U. S., at 150 ("[T]he
State's burden in justifying a particular discharge varies
depending upon the nature of the employee's expression");
id., at 151-152 (finding "a wide degree of deference"
appropriate where employee's speech touched only peripherally on
matters of public concern). Thus, in
Waters, the plurality
noted that "[i]n many such situations the government may have to
make a substantial showing that the speech is, in fact, likely to
be disruptive before it may be punished." 511 U. S., at 674. This
case presents one such situation.
The Court makes a persuasive case that the Government has made
no such showing and that the Government's asserted interests are
insufficiently weighty to justify a ban that curbs so much employee
speech. See
ante, at 470-477. In promulgating the ban,
Congress relied on the reports of two blue-ribbon panels that
suggested the prudence of a wide-ranging prohibition. N either
report noted any problems, anecdotal or otherwise, stemming from
the receipt of honoraria by rank-and-file Executive Branch
employees. Neither report, therefore, tends to substantiate the
Government's administrative efficiency argument, which presumes
that abuses may be so widespread as to justify a prophylactic rule.
Congress assuredly was inspired by a worthy interest, but it made
no effort to establish a connection between its interest and the
large-scale inhibition of non-work-related speech by the respondent
class. Our cases do not support the notion that the bare assertion
of a laudable purpose justifies wide-ranging intrusions on First
Amendment liberties. In
Civil Service Comm'n v.
Letter
Carriers, 413 U.
S. 548 (1973), perhaps the closest analogue to this case, we
upheld provisions of the Hatch Act, 5 U. S. C. § 7324(a)(2),
against a First Amendment challenge only after canvassing nearly a
century of concrete experience with the evils of the political
spoils system. Cf.
FCC v.
League of Women Voters of
Cal.,
484
468 U. S. 364,
401, n. 27 (1984) (noting that the Hatch Act "evolved over a
century of governmental experience with less restrictive
alternatives that proved to be inadequate to maintain the effective
operation of government").
I also agree with the Court that loopholes in the current
ethical regime tend to cast doubt upon the gravity of the problem
of honoraria abuse, or at least doubt upon the weight of the
problem as perceived by Congress and the Office of Government
Ethics (aGE). Cf.
City of Ladue v.
Gilleo,
512 U. S. 43,
52-53 (1994). Thus, in a provision that detracts seriously from the
Government's administrative convenience rationale, the statute
permits the author of a series of three speeches or publications
(but not of a single speech or publication) to receive an
honorarium if the series has no nexus to Government employment. See
5 U. S. C. App. § 505(3) (1988 ed., Supp. V). Under aGE
regulations, employees may receive honoraria for poems, but not for
speeches on poetry. See 5 CFR § 2636.203(d) (1992). Employees may
be compensated for writing chapters in books, but not for writing
the same piece if published as an article.
Ibid. Congress is
not required to address every aspect of a problem whenever it
decides to act. But the patchwork nature of this regime might
reasonably lead one to question the strength of the Government's
asserted interests in a broad, prophylactic ban.
The Government, when it acts as employer, possesses substantial
leeway; in appropriate circumstances, it may restrain speech that
the Constitution would otherwise protect. The Government's
prerogatives in this area stem from its public-serving mission as
employer. As the plurality observed last year in
Waters,
"[w]hen 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." 511 U. S., at 675.
In this case, however, the Government has exceeded the limits
485
of its latitude. The bare assertion of interest in a wideranging
prophylactic ban here, without any showing that Congress considered
empirical or anecdotal data pertaining to abuses by lower echelon
Executive Branch employees, cannot suffice to outweigh the
substantial burden on the 1.7 million affected employees. I agree
with the Court that § 501 is unconstitutional to the extent that it
bars this class of employees from receiving honoraria for
expressive activities that bear no nexus to Government
employment.
II
The class before us is defined by pay scale, not by its members'
propensity to write articles without nexus to Government
employment. As to any member of the class, the honoraria ban may
have unconstitutional applications. But the ban may be susceptible
of
constitutional application to every member of the class,
as well. We do not decide the question-a far harder case for
respondents, in my viewwhether it is constitutional to apply the
honoraria ban to speech by this class that bears a relationship to
Government employment. I believe that the Court overlooks this
nuance when it enjoins all enforcement of § 501 against the class,
any one of whose members may, in the future, receive honoraria for
work-related activities. I would give respondents relief tailored
to what they request: invalidation of the statute insofar as it
applies to honoraria they receive for speech without nexus to
Government employment. See Brief for Respondents 45-46 (noting that
respondents' central aim "could also be achieved by a remedy
similar to the one urged by the government-by holding the ban
invalid as applied to respondents' writing and speaking activities
[that] have no nexus to their federal employment").
I agree with the Court's assertion that the remedy in this case
is properly limited to the parties before us. We have long
characterized overbreadth analysis as "strong medicine," to be
"employed by the Court sparingly and only as a
486
last resort."
Broadrick v.
Oklahoma, 413 U. S. 601, 613
(1973). Accordingly, we have observed that "[i]t is not the usual
judicial practice, ... nor do we consider it generally desirable,
to proceed to an overbreadth issue unnecessarily."
Board of
Trustees of State Univ. of N.
Y. v.
Fox, 492 U. S. 469, 484-485
(1989); see also
New York v.
Ferber, 458 U. S. 747, 768 (1982)
(footnotes omitted) ("By focusing on the factual situation before
us, and similar cases necessary for development of a constitutional
rule, we face 'tiesh-and-blood' legal problems with data 'relevant
and adequate to an informed judgment' "). The class before us,
though defined broadly, consists of people who stand to benefit
generally from the invalidation of this statute as applied.
Because, as respondents freely admit, their central objective may
be achieved by an as-applied challenge, see Brief for Respondents
45-46, I agree that the Court has little warrant to venture into
the more difficult and uncertain overbreadth terrain.
Like the dissent, however, I believe that the Court imposes an
unduly broad remedy when it enjoins enforcement of the entire
provision as to respondent class. There is a commonsense appeal to
the Government's argument that, having deemed a particular
application of a statute unconstitutional, a court should not then
throw up its hands and despair of delineating the area of
unconstitutionality. See Brief for United States 38; Reply Brief
for United States 15. On its face, the statute contains an
exception for a "series" of speeches, appearances, and articles
unless "the subject matter is directly related to the individual's
official duties or the payment is made because of the individual's
status with the Government." 5 U. S. C. App. § 505(3) (1988 ed.,
Supp. V). I see no reason why the nexus principle underlying this
general provision cannot serve as the appropriate remedial
line.
The Court assumes that it would venture into judicial
legislation were it to invalidate the provision as it applies
to
487
no-nexus speech. But it is equally, if not more, inconsistent
with congressional intent to strike a greater portion of the
statute than is necessary to remedy the problem at hand. Although
our jurisprudence in this area is hardly a model of clarity, this
Court has on several occasions declared a statute invalid as to a
particular application without striking the entire provision that
appears to encompass it. In
United States v.
Grace,
461 U. S. 171
(1983), for example, the Court addressed the constitutionality of a
federal statute making it unlawful to "parade, stand, or move in
processions or assemblages in the Supreme Court Building or
grounds," or "to display therein any flag, banner, or device
designed or adapted to bring into public notice any party,
organization, or movement." 40 U. S. C. § 13k. Finding the
statute's extension to public fora inadequately justified, the
Court deemed the provision unconstitutional as applied to the
sidewalks surrounding the Supreme Court.
Grace, supra, at
183. In
Tennessee v.
Garner, 471 U. S. 1 (1985), the
Court invalidated a state provision permitting police officers to
use "'all the necessary means to effect the arrest'" of a fleeing
or forcibly resisting defendant only insofar as it authorized the
use of deadly force against an unarmed, nondangerous suspect.
Id., at 4, 22. In
Brockett v.
Spokane Arcades,
Inc., 472 U. S.
491 (1985), the Court invalidated a state obscenity statute
"only insofar as the word 'lust' is taken to include normal
interest in sex."
Id., at 504-505.
In
Brockett, the Court declared: "[W]here the parties
challenging the statute are those who desire to engage in protected
speech that the overbroad statute purports to punish, or who seek
to publish both protected and unprotected material[,] ... [t]he
statute may forthwith be declared invalid to the extent that it
reaches too far, but otherwise left intact."
Id., at 504. Of
course, we also noted that "[p]artial invalidation would be
improper if it were contrary to legislative intent in the sense
that the legislature had passed an inseverable Act or would not
have passed it had it known the
488
challenged provision was invalid."
Id., at 506. In
Brockett itself, the state statute contained a severability
clause announcing that the remainder of the Act would continue in
effect should "any provision of this act or its application to any
person or circumstance" be held invalid.
Id., at 506, n. 14.
Because the opinions in
Grace and
Garner made no
mention of the existence of statutory severability clauses, these
cases can perhaps best be explained as having involved implied
severability. After delineating the range of the statute's
impermissible applications, the Court implicitly concluded that the
legislatures at issue-Congress in
Grace and the Tennessee
Legislature in
Garner-would have preferred that the
remainder of the statutes continue intact. These cases are entirely
consistent with our severability precedents, in which we have held
that "Congress' silence is just that-silence-and does not raise a
presumption against severability."
Alaska Airlines, Inc. v.
Brock, 480 U.
S. 678, 686 (1987).
As the Court of Appeals noted below, "[s]ection 501(b) does not
contain a severability clause, and the legislative history yields
no direct evidence of intent concerning severability."
990 F.2d
1271, 1278 (CADC 1993). Under
Alaska Airlines, this fact
is by no means dispositive; the operative question instead is
whether Congress would have promulgated § 501(b) had it known that
it could not lawfully proscribe honoraria of employees below GS-16
for activities unrelated to Government employment. See 480 U. S.,
at 684; Stern, Separability and Separability Clauses in the Supreme
Court, 51 Harv. L. Rev. 76, 82-83 (1937) (in dealing with the
question of severable applications, the Court asks "whether the
legislative body would intend the law to be given effect to
whatever extent was constitutionally possible"). I think this
question can be answered in the affirmative here. In severing this
particular application, we leave the provision intact as to
high-level Executive Branch employees and to the Legislative and
Judicial Branches. Common sense suggests, and
489
legislative history confirms, that these Government employees,
not the parties to this case, were the statute's principal targets.
See,
e. g., 990 F. 2d, at 1278 (describing floor
debates at which speakers continually referred to abuses by
"Members of Congress" as the impetus for reform). As for employees
below GS-16, it seems to me clear that Congress would have barred
tax examiners from receiving honoraria for lectures on tax policy
even if it could not bar the same examiners from receiving
honoraria for articles on lowcholesterol cooking. The balance of
the provision serves a laudable purpose and is capable of
functioning independently once the improper application is excised.
Cf.
Alaska Airlines, supra, at 684.
In sum, I agree with the Court that § 501 is unconstitutional
insofar as it bars the respondent class of Executive Branch
employees from receiving honoraria for non-workrelated speeches,
appearances, and articles. In contrast to the Court, I would hold §
501 invalid only to that extent.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA and JUSTICE
THOMAS join, dissenting.
I believe that the Court's opinion is seriously flawed in two
respects. First, its application of the First Amendment understates
the weight that should be accorded to the governmental
justifications for the honoraria ban and overstates the amount of
speech that actually will be deterred. Second, its discussion of
the impact of the statute that it strikes down is carefully limited
to only a handful of the most appealing individual situations, but
when it deals with the remedy it suddenly shifts gears and strikes
down the statute as applied to the entire class of Executive Branch
employees below grade GS-16. I therefore dissent.
I
In 1991, in the aftermath of recommendations by two
distinguished commissions, Congress adopted its present ban
490
on the receipt of honoraria. Congress defined an "honorarium"
as
"a payment of money or any thing of value for an appearance,
speech or article (including a series of appearances, speeches, or
articles if the subject matter is directly related to the
individual's official duties or the payment is made because of the
individual's status with the Government) by a Member, officer or
employee, excluding, any actual and necessary travel expenses
incurred by such individual (and one relative) to the extent that
such expenses are paid or reimbursed by any other person, and the
amount otherwise determined shall be reduced by the amount of any
such expenses to the extent that such expenses are not paid or
reimbursed." 5 U. S. C. App. § 505(3) (1988 ed., Supp. V).
The ban neither prohibits anyone from speaking or writing, nor
does it penalize anyone who speaks or writes; the only stricture
effected by the statute is a denial of compensation.
In
Simon &
Schuster, Inc. v.
Members of
N.
Y. State Crime Victims Bd., 502 U. S. 105 (1991), we
evaluated the constitutionality of New York's "Son of Sam" law,
which regulated an accused or convicted criminal's receipt of
income generated by works that described his crime.
Id., at
108. We concluded that the law implicated First Amendment concerns
because it "impose[d] a financial disincentive only on speech of a
particular content."
Id., at 116. Because the "Son of Sam"
law was content based, we required the State to demonstrate that
the regulation was necessary to serve a compelling state interest
and was narrowly drawn to achieve that end.
Id., at 118. We
determined that the State had failed to meet its burden because the
statute was overbroad.
Id., at 123.
Unlike the law at issue in
Simon &
Schuster,
the honoraria ban is neither content nor viewpoint based.
Ante, at 468; cf.
Ward v.
Rock Against Racism,
491 U. S. 781,
791 (1989);
491
Renton v.
Playtime Theatres, Inc., 475 U. S. 41, 47-48
(1986). As a result, the ban does not raise the specter of
Government control over the marketplace of ideas. Cf.
Simon
&
Schuster, supra, at 116. To the extent that the
honoraria ban implicates First Amendment concerns, the proper
standard of review is found in our cases dealing with the
Government's ability to regulate the First Amendment activities of
its employees.
A public employee does not relinquish First Amendment rights to
comment on matters of public interest by virtue of government
employment. See
Pickering v.
Board of Ed. of Township
High School Dist. 205, Will Cty., 391 U. S. 563, 568
(1968);
Connick v.
Myers, 461 U. S. 138, 140
(1983). We have emphasized, however, that "the State's interests as
an employer in regulating the speech of its employees 'differ
significantly from those it possesses in connection with regulation
of the speech of the citizenry in general.' "
Ibid. (quoting
Pickering, supra, at 568). The proper resolution of these
competing interests requires "'a balance between the interests of
the [employee], as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in promoting
the efficiency of the public services it performs through its
employees.''' 461 U. S., at 140 (quoting
Pickering, supra,
at 568). Just last Term, a plurality of the Court explained:
"The key to First Amendment analysis of government employment
decisions, then, is this: The government's interest in achieving
its goals as effectively and efficiently as possible is elevated
from a relatively subordinate interest when it acts as sovereign to
a significant one when it acts as employer. The government cannot
restrict the speech of the public at large just in the name of
efficiency. But where the government is employing someone for the
very purpose of effectively achieving its goals, such restrictions
may well be appropriate." Waters v. Churchill,
511 U. S. 661,
675 (1994).
492
In conducting this balance, we consistently have given
substantial weight to government employers' reasonable predictions
of disruption, even when the speech involved was on a matter of
public concern.
Id., at 673-674 (plurality opinion). As we
noted in
Connick, "'the Government, as an employer, must
have wide discretion and control over the management of its
personnel and internal affairs.'" 461 U. S., at 151 (quoting
Arnett v.
Kennedy, 416 U. S. 134, 168 (1974)
(Powell, J., concurring in part and concurring in result)).
These principles are reflected in our cases involving
governmental restrictions on employees' rights to engage in
partisan political activity.l In
Public Workers v.
Mitchell, 330 U. S. 75 (1947), we examined § 9(a) of the
Hatch Act, which prohibited officers and employees in the Executive
Branch of the Federal Government, with exceptions, from taking"
'any active part in political management or in political
campaigns.'"
Id., at 78. We analyzed § 9(a)'s strictures as
applied to the partisan political activities of an industrial
employee at the United States Mint, and concluded that "[f]or
regulation of employees it is not necessary that the act regulated
be anything more than an act reasonably deemed by Congress to
interfere with the efficiency of the public service."
Id.,
at 101. Despite the fact that § 9(a) barred threemillion public
employees from taking "effective part in campaigns that may bring
about changes in their lives, their fortunes, and their happiness,"
id., at 107 (Black, J., dissenting), we held that if in
Congress' judgment "efficiency may be best obtained by prohibiting
active participation by classi-
1 In
Ex parte Curtis, 106 U. S. 371 (1882), we
upheld a statute that prohibited certain Government employees from
giving or receiving money for political purposes to or from other
Government employees.
Ibid. The evident purpose of the
statute was to "promote efficiency and integrity in the discharge
of official duties, and to maintain proper discipline in the public
service."
Id., at 373. "The decisive principle was the power
of Congress, within reasonable limits, to regulate, so far as it
might deem necessary, the political conduct of its employees."
Public Workers v.
Mitchell, 330 U. S. 75, 96 (1947)
(analyzing
Ex parte Curtis, supra).
493
tied employees in politics as party officers or workers," there
was no constitutional objection,
id., at 99.
More than 25 years later, we again addressed the
constitutionality of § 9(a) of the Hatch Act. In
Civil Service
Comm'n v.
Letter Carriers, 413 U. S. 548 (1973), we
"unhesitatingly reaffirm[ed] the
Mitchell holding,"
id., at 556, because "neither the First Amendment nor any
other provision of the Constitution invalidate[d] a law barring
this kind of partisan political conduct by federal employees,"
ibid. We applied the balancing approach set forth in
Pickering to the Hatch Act's sweeping limitation on partisan
political activity, and determined that the balance struck by
Congress was "sustainable by the obviously important interests
sought to be served by the limitations on partisan political
activities now contained in the Hatch Act." 413 U. S., at 564. We
concluded that "[p]erhaps Congress at some time w[ould] come to a
different view of the realities of political life and Government
service," but we were in no position to dispute Congress' current
view of the matter.
Id., at 567.
Although protection of employees from pressure to perform
political chores certainly was
a concern of the Hatch Act,
see
ante, at 471, it was by no means the only, or even the
most important, concern.2 See
Letter Carriers, supra, at
566. Rather, the Court recognized that a major thesis of the Hatch
Act was that
"to serve this great end of Government-the impartial execution
of the laws-it is essential that federal employees ... not take
formal positions in political parties, not undertake to play
substantial roles in partisan political campaigns, and not run for
office on partisan political tickets. Forbidding activities like
these will reduce the
2 Prior to the Hatch Act, Congress had prohibited Civil Service
employees from" 'us[ing] [their] official authority or influence to
coerce the political action of any person or body.' "
Mitchell,
supra, at 79-80, n. 4 (quoting Civil Service Act, ch. 27, § 2,
22 Stat. 404).
494
hazards to fair and effective government." 413 U. S., at
565.
The Court emphasized that "it is not only important that the
Government and its employees in fact avoid practicing political
justice, but it is also critical that they appear to the public to
be avoiding it, if confidence in the system of representative
Government is not to be eroded to a disastrous extent."
Ibid. Thus, the Hatch Act served as a safeguard to both the
actual and perceived impartiality and effectiveness of the Federal
Government. See
Mitchell, supra, at
95-96; Letter
Carriers, supra, at 564-567.
Applying these standards to the honoraria ban, I cannot say that
the balance that Congress has struck between its interests and the
interests of its employees to receive compensation for their First
Amendment expression is unreasonable. Cf.
Letter Carriers,
supra, at 564;
Pickering, 391 U. S., at 568.
The Court largely ignores the Government's foremost
interest-prevention of impropriety and the appearance of
impropriety-by focusing solely on the burdens of the statute as
applied to several carefully selected Executive Branch employees
whose situations present the application of the statute where the
Government's interests are at their lowest ebb: a mail handler
employed by the Postal Service who lectured on the Quaker religion;
an aerospace engineer who lectured on black history; a
microbiologist who reviewed dance performances; and a tax examiner
who wrote articles about the environment.
Ante, at 461-462.
Undoubtedly these are members of the class, but they by no means
represent the breadth of the class which includes all
"'employee[sJ' ... below grade GS-16, who-but for 5 U. S. C. app.
501(b)would receive 'honoraria', as defined in 5 U. S. C. app.
505(3)." App. 124-125. Nothing in the class certification limits
the receipt of honoraria to the activities engaged in by the
several employees discussed by the Court. See,
e.
g.,
495
ante, at 463, n. 6. This artificially narrow prism of
class members, however, is the focus of the Court's entire First
Amendment discussion.
The class definition speaks of anyone who would receive an
honorarium but for the statute. App. 124-125. An unknown number of
these individuals would receive honoraria where there is a nexus
between their speech and their Government employment. There is
little doubt that Congress reasonably could conclude that its
interests in preventing impropriety and the appearance of
impropriety in the federal work force outweigh the employees'
interests in receiving compensation for expression that has a nexus
to their Government employment. Cf.
Federal Election Comm'n
v.
National Right to Work Comm., 459 U. S. 197, 210 (1982)
("The governmental interest in preventing both actual corruption
and the appearance of corruption of elected representatives has
long been recognized").
The Court relies on cases involving restrictions on the speech
of private actors to argue that the Government is required to
produce "evidence of misconduct related to honoraria in the vast
rank and file of federal employees below grade GS-16."
Ante,
at 472;
ante, at 475-476, and n. 21.3 The Court recognizes,
however, that we "'have consistently given greater deference to
government predictions of harm used to justify restriction of
employee speech than to predictions of harm used to justify
restrictions on the speech of the public at large.'''
Ante,
at 475, n. 21 (quoting
Waters, 511 U. S., at 673 (plurality
opinion)).
3 Ironically, the Court engages in unsupported factfinding to
justify its conclusion. Thus, its First Amendment analysis is
replete with observations such as "[w]ith few exceptions, the
content of respondents' messages has nothing to do with their jobs
and does not even arguably have any adverse impact on the
efficiency of the offices in which they work,"
ante, at 465;
and "[b]ecause the vast majority of the speech at issue in this
case does not involve the subject matter of Government employment
and takes place outside the workplace, the Government is unable to
justify § 501(b) on the grounds of immediate workplace disruption."
Ante, at 470.
496
Prior to enactment of the current honoraria ban, Congress was
informed by two distinguished commissions that its previous
limitations on honoraria were inadequate. The 1989 Quadrennial
Commission recommended that "Congress enact legislation abolishing
the practice of accepting honoraria in all three branches."
Fairness for Our Public Servants: Report of the 1989 Commission on
Executive, Legislative and Judicial Salaries vi (Dec. 1988). To
Serve With Honor: Report of the President's Commission on Federal
Ethics Law Reform (Mar. 1989) (hereinafter Wilkey Commission)
echoed many of the Quadrennial Commission's concerns:
"We recognize that speeches by federal officials can help inform
the public or particular groups and may encourage interchange
between the public and private sectors. Nevertheless, we can see no
justification for perpetuating the current system of honoraria.
Honoraria paid to officials can be a camouflage for efforts by
individuals or entities to gain the officials' favor. The
companies that pay honoraria and related travel expenses frequently
deem these payments to be normal business expenses and likely
believe that these payments enhance their access to public
officials who receive them ....
"Although we are aware of no special problems associated with
receipt of honoraria within the judiciary, the Commission-in the
interest of alleviating abuses in the legislative branch and in
applying equitable limitations across the government-joins the
Quadrennial Commission in recommending the enactment of legislation
to ban the receipt of honoraria by all officials and employees in
all three branches of government." Id., at 35-36 (emphasis
added).
The Wilkey Commission "recognize[d] that banning honoraria would
have a substantial financial cost to many officials,"
id.,
at 36, but determined that "the current ailment is
497
a serious one and that this medicine is no more bitter than is
needed to cure the patient,"
ibid. The Wilkey Commission
also was aware that its recommendations covered not only high-level
federal employees,4 but it "regard[ed] the current state of affairs
as to honoraria in particular as unacceptable in the extreme, and
believe[d] that [the Government could not] wait until an
unspecified date in the future to end this harmful practice."
Id., at 38.5
The Court concedes that in light of the abuses of honoraria by
its Members, Congress could reasonably assume that "payments of
honoraria to judges or high-ranking officials in the Executive
Branch might generate a similar appearance of improper influence,"
ante, at 473, but it concludes that Congress could not
extend this presumption to federal em-
4 "The Commission also considered whether it was appropriate to
impose a flat ban on outside earned income by all federal
employees, or in the alternative, by the highest paid federal
employees. In view of the diverse circumstances of federal
employees, we felt that an across-the-board ban on outside earned
income was unnecessary and too harsh." Wilkey Commission 38.
5 The Court discusses a report of the General Accounting Office
(GAO) to refute the argument that there is some evidence of
misconduct related to honoraria in the rank and file of federal
employees below grade GS-16.
Ante, at 472, n. 18 (citing
General Accounting Office, Report to the Chairman, Subcommittee on
Federal Services, Post Office and Civil Service of the Senate
Committee on Governmental Mfairs, Employee Conduct Standards: Some
Outside Activities Present Conflict-of-Interest Issues (Feb. 1992)
(hereinafter GAO Report)). The GAO audited 11 agencies' controls
over outside activities by employees.
Id., at 2. The GAO
Report reflects that under the prior regime, some agencies
exhibited "overly permissive approval policies,"
ibid., and
"five agencies approved some outside activities, such as speaking
and consulting, that appeared to violate the standard of conduct
prohibiting the use of public office for private gain,"
ibid. Nine of the eleven agencies reviewed had "approved
outside activities in situations that involved potential violations
of standard-ofconduct regulations or conflict-of-interest
statutes."
Id., at 58. Nevertheless, the Court maintains
that there is no evidence of even the appearance of impropriety by
employees below grade GS-16. Cf.
ante, at 472, n.18.
498
ployees below grade GS-16. The theory underlying the Court's
distinction-that federal employees below grade GS-16 have
negligible power to confer favors on those who might pay to hear
them speak or to read their articles-is seriously flawed. Tax
examiners, bank examiners, enforcement officials, or any number of
federal employees have substantial power to confer favors even
though their compensation level is below grade GS-16.
Furthermore, we rejected the same distinction in
Public
Workers v.
Mitchell:
"There is a suggestion that administrative workers may be
barred, constitutionally, from political management and political
campaigns while the industrial workers may not be barred,
constitutionally, without an act 'narrowly and selectively drawn to
define and punish the specific conduct.' ... Congress has
determined that the presence of government employees, whether
industrial or administrative, in the ranks of political party
workers is bad. Whatever differences there may be between
administrative employees of the government and industrial workers
in its employ are differences in detail so far as the
constitutional power under review is concerned. Whether there are
such differences and what weight to attach to them, are all matters
of detail for Congress." 330 U. S., at 102.
Congress was not obliged to draw an infinitely filigreed statute
to deal with every subtle distinction between various groups of
employees. See
Letter Carriers, 413 U. S., at 556;
Mitchell, supra, at 99.
The Court dismisses the Hatch Act experience as irrelevant,
because it aimed to
protect employees' rights, notably their
right to free expression, rather than to restrict those rights.
Ante, at 471. This is, indeed, a strange characterization of
§ 9(a) of the Hatch Act. It prohibited officers
499
and employees in the Executive Branch of the Federal Government
from taking" 'any active part in political management or in
political campaigns.'"
Mitchell, supra, at 78. The penalty
for violation was dismissal from office. 330 U. S., at 79. Since
the right to participate in a political campaign is surely secured
in the abstract by the First Amendment, see,
e. g., Buckley
v.
Valeo, 424 U.
S. 1, 15 (1976)
(per curiam), it can hardly be said that
the Act
protected the rights of workers who wished to engage
in partisan political activity. One of the purposes of the Act was
assuredly to free employees who did not wish to become engaged in
politics from requests by their superiors to contribute money or
time, but to the extent the Act protected these employees it
undoubtedly limited the First Amendment rights of those who did
wish to take an active part in politics.
The Government's related concern regarding the difficulties that
would attach in administering a case-by-case analysis of the
propriety of particular honoraria also supports the honoraria ban's
validity. As we emphasized in
Waters, "[t]he government's
interest in achieving its goals as effectively and efficiently as
possible is elevated from a relatively subordinate interest when it
acts as sovereign to a significant one when it acts as employer."
511 U. S., at 675. Congress reasonably determined that the prior
ethics regime, which required these case-by-case determinations,
was inadequate. See App. 257 ("[T]he current state of affairs as to
honoraria [is] unacceptable in the extreme"). As a subsequent 1992
GAO Report confirmed, individual ethics officers and various
agencies gave differing interpretations to the nexus requirement,
and some "approved activities that were questionable as to the
appropriateness of accepting compensation." GAO Report, at 9.
The Court observes that because a nexus limitation is retained
for a series of speeches, it cannot be that difficult to enforce.
Ante, at 474. The exception that the honoraria ban
500
makes for a "series of appearances, speeches, or articles," far
from undermining the statute's basic purpose, demonstrates that
Congress was sensitive to the need for inhibiting as little speech
consistent with its responsibility of ensuring that its employees
perform their duties impartially and that there is no appearance of
impropriety. Reply Brief for United States 12-13. One is far less
likely to undertake a "series" of speeches or articles without
being paid than he is to make a single speech or write a single
article without being paid. Congress reasonably could have
concluded that the number of cases where an employee wished to
deliver a "series" of speeches would be much smaller than the
number of requests to give individual speeches or write individual
articles.
Unlike our prototypical application of
Pickering which
normally involves a response to the content of employee speech, the
honoraria ban prohibits no speech and is unrelated to the message
or the viewpoint expressed by the Government employee.6 Cf.
Waters, supra, at 664-666 (plurality opinion) (analyzing
termination of an employee based upon statements critical of the
employer);
Rankin v.
McPherson, 483 U. S. 378, 381-382
(1987) (analyzing termination of an employee based upon a comment
about an attempted assassination of President Reagan);
Pickering, 391 U. S., at 564 (analyzing termination of an
employee based upon a letter critical of the school board).
Furthermore, the honoraria ban exempts from its prohibition travel
and other expenses re-
6 The Court's fanciful example of an employer terminating an
employee because of the disruptive effect of the employee's
expression even where the employer agrees with the expression,
ante, at 467, n. 11, does not detract from the fact that
viewpoint and content neutrality are important factors in
evaluating the reasonableness of the public employer's action. See,
e. g., Civil Service Comm'n v.
Letter
Carriers, 413 U.
S. 548, 564 (1973) ("The restrictions so far imposed on federal
employees are not aimed at particular parties, groups, or points of
view .... Nor do they seek to control political opinions or
beliefs, or to interfere with or influence anyone's vote at the
polls").
501
lated to employee speech. See 5 U. S. C. App. § 505(3) (1988
ed., Supp. V); 5 CFR § 2636.203 (1994). Because there is only a
limited burden on respondents' First Amendment rights, Congress
reasonably could have determined that its paramount interests in
preventing impropriety and the appearance of impropriety in its
work force justified the honoraria ban. See
Civil Service
Comm'n v.
Letter Carriers, supra; Public Workers v.
Mitchell, 330
U. S. 75 (1947).
There is a special irony to the Court's decision. In order to
combat corruption and to regain the public's trust, the Court
essentially requires Congress to resurrect a bureaucracy that it
previously felt compelled to replace and to equip it with resources
sufficient to conduct case-by-case determinations regarding the
actual and apparent propriety of honoraria by all Executive Branch
employees below grade GS-16. I believe that a proper application of
the
Pickering test to this content-neutral restriction on
the receipt of compensation compels the conclusion that the
honoraria ban is consistent with the First Amendment. See
Civil
Service Comm'n v.
Letter Carriers, 413 U. S. 548 (1973).
II
One would expect, at the conclusion of its discussion in Parts
I-IV; for the Court to hold the statute inapplicable on First
Amendment grounds to persons such as the postal worker who lectures
on the Quaker religion, and others of similar ilk. But the Court in
Part V, in what may fairly be described as an O. Henry ending,
holds the statute inapplicable to the entire class before the
Court: all Executive Branch employees below grade GS-16 who would
receive honoraria but for the statute. Under the Court's "as
applied" remedy, § 501(b) would not apply regardless of whether
there was a nexus between the compensation and the individual's
employment. Even if I agreed that application of the honoraria ban
to expressive activity unrelated to an employee's Gov-
502
ernment employment violated the First Amendment, I could not
agree with the Court's remedy.7
In
United States v.
Grace, 461 U. S. 171 (1983), we
analyzed the constitutionality of 40 U. S. C. § 13k (1982 ed.), as
applied to the public sidewalks surrounding the Supreme Court.
Section 13k prohibited, "among other things, the 'display [of] any
flag, banner, or device designed or adapted to bring into public
notice any party, organization, or movement' in the United States
Supreme Court building and on its grounds." 461 U. S., at 172-173
(quoting § 13k). We concluded that there was insufficient
justification for § 13k's prohibition against carrying signs,
banners, or devices on the public sidewalks surrounding the
building.
Id., at 183. As a remedy, we held that § 13k was
"unconstitutional as applied to those sidewalks."
Ibid.; see
also
Edenfield v.
Fane, 507 U. S. 761, 763 (1993)
(striking down a ban on solicitation by certified public
accountants as applied to the "business context").
Although the Court limits its analysis to only those
applications of the honoraria ban where there is no nexus between
the honoraria and Government employment, the Court prohibits
application of the honoraria ban to all Executive Branch employees
below grade GS-16 even where there is a nexus between the honoraria
and the employees' Government employment.
Ante, at 479-480.8
Even respondents acknowledge that the central aim of their
litigation could "be achieved by a remedy similar to the one urged
by the government-by holding the ban invalid as applied to
respond-
7 Lost in the shuffle of the Court's remedy is Peter Crane, a
GS-16 lawyer from the Nuclear Regulatory Commission, and a
respondent before the Court.
Ante, at 461. Although the
rationale behind the Court's holding does not necessarily apply to
Crane, see
ante, at 478, n. 23, the Court's holding
apparently does.
8 Because the Court has rewritten the honoraria ban so that it
no longer applies to Executive Branch employees below grade GS-16,
I certainly could not condemn the Court for its refusal to rewrite
the statute. Cf.
ante, at 479, n. 26. I simply challenge the
Court's failure to tailor its remedy to match its selective
analysis.
503
ents' writing and speaking activities, which have no nexus to
their federal employment." Brief for Respondents 45-46.
Consistent with our approach in
Grace, supra, if I were
to conclude that § 501(b) violated the First Amendment, I would
affirm the Court of Appeals only insofar as its judgment affirmed
the injunction against the enforcement of § 501(b) as applied to
Executive Branch employees below grade GS-16 who seek honoraria
that are unrelated to their Government employment.
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