OCTOBER TERM, 1993
Syllabus
WATERS ET AL. v. CHURCHILL ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT
No. 92-1450. Argued December 1, 1993-Decided May 31, 1994
Petitioners fired respondent Churchill from her nursing job at a
public hospital, allegedly because of statements she made to
co-worker Perkins-Graham during a work break. What Churchill
actually said during the conversation is in dispute. Petitioners'
version was based on interviews with Perkins-Graham and one Ballew,
who had overheard part of the conversation, and indicated that
Churchill made disruptive statements critical of her department and
of petitioners. However, in Churchill's version, which was
corroborated by others who had overheard part of the conversation,
her speech was largely limited to nondisruptive statements critical
of the hospital's "cross-training" policy, which she believed
threatened patient care. Churchill sued under 42 U. S. C. § 1983,
claiming that her speech was protected under Connick v. Myers,
461 U. S. 138,
142, in which the Court held that the First Amendment protects a
government employee's speech if it is on a matter of public concern
and the employee's interest in expressing herself on this matter is
not outweighed by any injury the speech could cause to the
government's interest, as an employer, in promoting the efficiency
of the public services it performs through its employees. The
District Court granted petitioners summary judgment, holding that
management could fire Churchill with impunity because neither
version of the conversation was protected under Connick. The Court
of Appeals reversed, concluding that Churchill's speech, viewed in
the light most favorable to her, was on a matter of public concern
and was not disruptive, and that the inquiry must turn on what her
speech actually was, as determined by a jury, not on what the
employer thought it was.
Held: The judgment is vacated, and the case is remanded.
977 F.2d
1114, vacated and remanded.
JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE SOUTER,
AND JUSTICE GINSBURG, concluded:
1. The Connick test should be applied to what the government
employer reasonably thought was said, not to what the trier of fact
ultimately determines to have been said. Pp. 668-679.
(a) Absent a general test for deciding when the First Amendment
requires a procedural safeguard, the question must be answered on a
case-by-case basis, by considering the procedure's cost and the
relative
662
Syllabus
magnitude and constitutional significance of the risks of
erroneous punishment of protected speech and of erroneous
exculpation of unprotected speech that the procedure involves. In
evaluating these factors here, the key is the government employer's
interest in achieving its goals as effectively and efficiently as
possible. Pp. 668-675.
(b) The Court of Appeals' approach gives insufficient weight to
this interest, since it would force the government employer to come
to its factual conclusions through procedures that substantially
mirror the evidentiary rules used in court, whereas employment
decisions are frequently and properly based on hearsay, past
similar conduct, personal knowledge of people's credibility, and
other factors that the judicial process ignores. Pp. 675-677.
(c) On the other hand, courts must not apply the Connick test
only to the facts as the employer thought them to be, without
considering the reasonableness of the employer's conclusions. It is
necessary that the decisionmaker reach its conclusion about what
was said in good faith, rather than as a pretext; but it does not
follow that good faith alone is sufficient under the First
Amendment. Mt. Healthy City Bd. of Ed. v. Doyle,
429 U. S. 274, and
Pickering v. Board of Ed. of Township High School Dist. 205, Will
Cty.,
391 U. S.
563, distinguished. P. 677.
(d) Thus, if an employment action is based on what an employee
supposedly said, and a reasonable supervisor would recognize that
there is a substantial likelihood that what was actually said was
protected, the First Amendment requires that the manager proceed
with the care that a reasonable manager would use before making an
employment decision of the sort involved in the particular case. In
situations in which reasonable employers would disagree about who
is to be believed, or how much investigation needs to be done, or
how much evidence is needed to come to a particular conclusion,
many different courses of action will necessarily be reasonable,
and only procedures outside the range of what a reasonable manager
would use may be condemned as unreasonable. Pp. 677-678.
2. Applying the foregoing to this case demonstrates that
petitioners must win if they really did believe Perkins-Graham's
and Ballew's story, and fired Churchill because of it. That belief,
based on the investigation petitioners conducted, would have been
entirely reasonable. Moreover, as a matter of law, the potential
disruptiveness of Churchill's speech would have rendered it
unprotected under the Connick test. Nonetheless, the District Court
erred in granting petitioners summary judgment, since Churchill has
produced enough evidence to create a material issue of disputed
fact about whether she was actually fired because of disruptive
statements, or because of nondisruptive state-
663
ments about cross-training, or because of other statements she
may have made earlier. If either of the latter is so, the court
will have to determine whether the statements in question were
protected speech. Pp. 679-682.
JUSTICE SCALIA, joined by JUSTICE KENNEDY and JUSTICE THOMAS,
concluded that the Court should adhere to its previously stated
rule that a public employer's disciplining of an employee violates
the First Amendment only if it is in retaliation for the employee's
speech on a matter of public concern, see, e. g., Pickering v.
Board of Ed. of Township High School Dist. 205, Will Cty.,
391 U. S. 563, 572, and
should not add to this prohibition a requirement that the employer
conduct an investigation before taking disciplinary action. The
plurality's recognition of a broad new First Amendment right to an
investigation before dismissal for speech is unprecedented and
unpredictable in its application and consequences. In light of the
requirement of a pretext inquiry, it is also superfluous to the
disposition of this case and unnecessary for the protection of
public-employee speech on matters of public concern. Judicial
inquiry into the genuineness of a public employer's asserted
permissible justification for an employment decision-be it
unprotected speech, general insubordination, or laziness-is all
that is necessary to avoid the targeting of "public interest"
speech condemned in Pickering. See, e. g., Mt. Healthy City Bd. of
Ed. v. Doyle,
429 U.
S. 274, 287. Churchill's right not to be dismissed in
retaliation for her expression of views on a matter of public
concern was not violated, since she was dismissed for another
reason, erroneous though it may have been. pp. 686-694.
O'CONNOR, J., announced the judgment of the Court and delivered
an opinion, in which REHNQUIST, C. J., and SOUTER and GINSBURG,
JJ., joined. SOUTER, J., filed a concurring opinion, post, p. 682.
SCALIA, J., filed an opinion concurring in the judgment, in which
KENNEDY and THOMAS, JJ., joined, post, p. 686. STEVENS, J., filed a
dissenting opinion, in which BLACKMUN, J., joined, post, p.
694.
Lawrence A. Manson argued the cause for petitioners.
With him on the briefs was Donald
J. McNeil.
Richard H. Seamon argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were Solicitor
General Days, Assistant Attorney General Hunger, Acting Deputy
Solicitor General Kneedler, Barbara L. Herwig, and Robert D.
Kamenshine.
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Opinion of O'CONNOR, J.
John H. Bisbee argued the cause for respondents. With him on the
brief was Barry Nakell.
*
JUSTICE O'CONNOR announced the judgment of the Court and
delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE SOUTER,
and JUSTICE GINSBURG join.
In Connick v. Myers,
461 U. S. 138 (1983), we
set forth a test for determining whether speech by a government
employee may, consistently with the First Amendment, serve as a
basis for disciplining or discharging that employee. In this case,
we decide whether the Connick test should be applied to what the
government employer thought was said, or to what the trier of fact
ultimately determines to have been said.
I
This case arises out of a conversation that respondent Cheryl
Churchill had on January 16, 1987, with Melanie Perkins-Graham.
Both Churchill and Perkins-Graham were nurses working at McDonough
District Hospital; Churchill was in the obstetrics department, and
Perkins-Graham was considering transferring to that department. The
conversation took place at work during a dinner break. Petitioners
heard about it and fired Churchill, allegedly because of it. There
is, however, a dispute about what Churchill actually said, and
therefore about whether petitioners were constitutionally permitted
to fire Churchill for her statements.
* Richard Ruda and Glen D. Nager filed a brief for the
International City/County Management Association et al. as amici
curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the
American Nurses Association by Ronald C. Jessamy; for the National
Education Association et al. by Robert H. Chanin, Jeremiah A.
Collins, and Larry P. Weinberg; and for the Southern States Police
Benevolent Association et al. by
J. Michael McGuinness.
Charles E. Tucker, Jr., Patricia C. Benassi, and Mary Lee Leahy
filed a brief for the National Employment Lawyers Association as
amicus curiae.
665
The conversation was overheard in part by two other nurses, Mary
Lou Ballew and Jean Welty, and by Dr. Thomas Koch, the clinical
head of obstetrics. A few days later, Ballew told Cynthia Waters,
Churchill's supervisor, about the incident. According to Ballew,
Churchill took "'the cross trainee into the kitchen for ... at
least 20 minutes to talk about [Waters] and how bad things are in
[obstetrics] in general.'"
977 F.2d
1114, 1118 (CA7 1992). Ballew said that Churchill's statements
led Perkins-Graham to no longer be interested in switching to the
department. Supplemental App. of Defendants-Appellees in No.
91-2288 (CA7), p. 60.
Shortly after this, Waters met with Ballew a second time for
confirmation of Ballew's initial report. Ballew said that Churchill
"was knocking the department" and that "in general [Churchill] was
saying what a bad place [obstetrics] is to work." Ballew said she
heard Churchill say Waters "was trying to find reasons to fire
her." Ballew also said Churchill described a patient complaint for
which Waters had supposedly wrongly blamed Churchill. Id., at
67-68.
Waters, together with petitioner Kathleen Davis, the hospital's
vice president of nursing, also met with PerkinsGraham, who told
them that Churchill "had indeed said unkind and inappropriate
negative things about [Waters]." Id., at 228. Also, according to
Perkins-Graham, Churchill mentioned a negative evaluation that
Waters had given Churchill, which arose out of an incident in which
Waters had cited Churchill for an insubordinate remark. Ibid. The
evaluation stated that Churchill "'promotes an unpleasant
atmosphere and hinders constructive communication and
cooperation,'" 977 F. 2d, at 1118, and" 'exhibits negative behavior
towards [Waters] and [Waters'] leadership through her actions and
body language'''; the evaluation said Churchill's work was
otherwise satisfactory,
id., at 1116. Churchill allegedly
told Perkins-Graham that she and Waters had discussed the
evaluation, and that Waters "wanted to wipe the slate clean ... but
[Churchill thought] this wasn't possible."
666
Opinion of O'CONNOR, J.
Supplemental App. of Defendants-Appellees in No. 91-2288, at
228. Churchill also allegedly told Perkins-Graham "that just in
general things were not good in OB and hospital administration was
responsible." Id., at 229. Churchill specifically mentioned Davis,
saying Davis "was ruining MDH." Ibid. Perkins-Graham told Waters
that she knew Davis and Waters "could not tolerate that kind of
negativism." Ibid.
Churchill's version of the conversation is different. For
several months, Churchill had been concerned about the hospital's
"cross-training" policy, under which nurses from one department
could work in another when their usual location was overstaffed.
Churchill believed this policy threatened patient care because it
was designed not to train nurses but to cover staff shortages, and
she had complained about this to Davis and Waters. According to
Churchill, the conversation with Perkins-Graham primarily concerned
the crosstraining policy. 977 F. 2d, at 1118. Churchill denies that
she said some of what Ballew and Perkins-Graham allege she said.
She does admit she criticized Davis, saying her staffing policies
threatened to "ruin" the hospital because they" 'seemed to be
impeding nursing care.'" Ibid. She claims she actually defended
Waters and encouraged Perkins-Graham to transfer to obstetrics.
Ibid.
Koch's and Welty's recollections of the conversation match
Churchill's. Id., at 1122. Davis and Waters, however, never talked
to Koch or Welty about this, and they did not talk to Churchill
until the time they told her she was fired. Moreover, Churchill
claims, Ballew was biased against Churchill because of an incident
in which Ballew apparently made an error and Churchill had to cover
for her. Brief for Respondents 9, n. 12.
After she was discharged, Churchill filed an internal grievance.
The president of the hospital, petitioner Stephen Hopper, met with
Churchill in regard to this and heard her side of the story. App.
to Pet. for Cert. 75-77. He then re-
667
viewed Waters' and Davis' written reports of their conversations
with Ballew and Perkins-Graham, and had Bernice Magin, the
hospital's vice president of human resources, interview Ballew one
more time. Supplemental App. of Defendants-Appellees in No.
91-2288, at 108, 139-142. After considering all this, Hopper
rejected Churchill's grievance.
Churchill then sued under Rev. Stat. § 1979, 42 U. S. C. § 1983,
claiming that the firing violated her First Amendment rights
because her speech was protected under Connick v. Myers,
461 U. S. 138 (1983). In
May 1991, the United States District Court for the Central District
of Illinois granted summary judgment to petitioners. The court held
that neither version of the conversation was protected under
Connick: Regardless of whose story was accepted, the speech was not
on a matter of public concern, and even if it was on a matter of
public concern, its potential for disruption nonetheless stripped
it of First Amendment protection. Therefore, the court held,
management could fire Churchill for the conversation with impunity.
App. to Pet. for Cert. 45-49.
The United States Court of Appeals for the Seventh Circuit
reversed.
977 F.2d
1114 (1992). The court held that Churchill's speech, viewed in
the light most favorable to her, was protected speech under the
Connick test: It was on a matter of public concern-"the hospital's
[alleged] violation of state nursing regulations as well as the
quality and level of nursing care it provides its patients,"
id., at 1122-and it was not disruptive,
id., at
1124.
The court also concluded that the inquiry must turn on what the
speech actually was, not on what the employer thought it was. "If
the employer chooses to discharge the employee without sufficient
knowledge of her protected speech as a result of an inadequate
investigation into the employee's conduct," the court held, "the
employer runs the risk of eventually being required to remedy any
wrongdoing
668
Opinion of O'CONNOR, J.
whether it was deliberate or accidental." Id., at 1127 (footnote
omitted).
We granted certiorari, 509 U. S. 903 (1993), to resolve a
conflict among the Circuits on this issue. Compare the decision
below with Atcherson v. Siebenmann,
605 F.2d
1058 (CA8 1979); Wulfv. Wichita,
883 F.2d
842 (CAlO 1989); Sims v. Metropolitan Dade County,
972 F.2d
1230 (CAll 1992).
II A
There is no dispute in this case about when speech by a
government employee is protected by the First Amendment:
To be protected, the speech must be on a matter of public
concern, and the employee's interest in expressing herself on this
matter must not be outweighed by any injury the speech could cause
to "'the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its
employees.''' Connick, supra, at 142 (quoting Pickering v. Board of
Ed. of Township High School Dist. 205, Will Cty.,
391 U. S. 563, 568
(1968)). It is also agreed that it is the court's task to apply the
Connick test to the facts. 461 U. S., at 148, n. 7, and 150, n.
10.
The dispute is over how the factual basis for applying the
test-what the speech was, in what tone it was delivered, what the
listener's reactions were, see
id., at 151-153-is to be
determined. Should the court apply the Connick test to the speech
as the government employer found it to be, or should it ask the
jury to determine the facts for itself? The Court of Appeals held
that the employer's factual conclusions were irrelevant, and that
the jury should engage in its own factfinding. Petitioners argue
that the employer's factual conclusions should be dispositive.
Respondents take a middle course: They suggest that the court
should accept the employer's factual conclusions, but only if those
conclusions were arrived at reasonably, see Brief for Respondents
39, something they say did not happen here.
669
We agree that it is important to ensure not only that the
substantive First Amendment standards are sound, but also that they
are applied through reliable procedures. This is why we have often
held some procedures-a particular allocation of the burden of
proof, a particular quantum of proof, a particular type of
appellate review, and so on-to be constitutionally required in
proceedings that may penalize protected speech. See Freedman v.
Maryland,
380 U. S.
51, 58-60 (1965) (government must bear burden of proving that
speech is unprotected); Speiser v. Randall,
357 U. S. 513, 526 (1958)
(same); Philadelphia Newspapers, Inc. v. Hepps,
475 U. S. 767, 775-778
(1986) (libel plaintiff must bear burden of proving that speech is
false); Masson v. New Yorker Magazine, Inc.,
501 U. S. 496, 510 (1991)
(actual malice must be proved by clear and convincing evidence);
Bose Corp. v. Consumers Union of United States, Inc.,
466 U. S. 485, 503-511
(1984) (appellate court must make independent judgment about
presence of actual malice).
These cases establish a basic First Amendment principle:
Government action based on protected speech may under some
circumstances violate the First Amendment even if the government
actor honestly believes the speech is unprotected. And though
JUSTICE SCALIA suggests that this principle be limited to licensing
schemes and to "deprivation[s] of the freedom of speech
specifically through the judicial process," post, at 687 (emphasis
in original), we do not think the logic of the cases supports such
a limitation. Speech can be chilled and punished by administrative
action as much as by judicial processes; in no case have we
asserted or even implied the contrary. In fact, in Speiser v.
Randall, we struck down procedures, on the grounds that they were
insufficiently protective of free speech, which involved both
administrative and judicial components. Speiser, like this case,
dealt with a government decision to deny a speaker certain
benefits-in Speiser a tax exemption, in this case a government
job-based on what the speaker said. Our
670
Opinion of O'CONNOR, J.
holding there did not depend on the deprivation taking place
"specifically through the judicial process," and we cannot see how
the result could have been any different had the process been
entirely administrative, with no judicial review. We cannot sweep
aside Speiser and the other cases cited above as easily as JUSTICE
SCALIA proposes.
Nonetheless, not every procedure that may safeguard protected
speech is constitutionally mandated. True, the procedure adopted by
the Court of Appeals may lower the chance of protected speech being
erroneously punished. A speaker is more protected if she has two
opportunities to be vindicated-first by the employer's
investigation and then by the jury-than just one. But each
procedure involves a different mix of administrative burden, risk
of erroneous punishment of protected speech, and risk of erroneous
exculpation of unprotected speech. Though the First Amendment
creates a strong presumption against punishing protected speech
even inadvertently, the balance need not always be struck in that
direction. We have never, for instance, required proof beyond a
reasonable doubt in civil cases where First Amendment interests are
at stake, though such a requirement would protect speech more than
the alternative standards would. Compare, e. g., California ex rel.
Cooper v. Mitchell Brothers' Santa Ana Theater,
454 U. S. 90, 93 (1981)
(per curiam), with McKinney v. Alabama,
424 U. S. 669, 686 (1976)
(Brennan, J., concurring in judgment in part). Likewise, the
possibility that defamation liability would chill even true speech
has not led us to require an actual malice standard in all libel
cases. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
472 U. S. 749,
761 (1985) (plurality opinion); Gertz v. Robert Welch, Inc.,
418 U. S. 323
(1974). Nor has the possibility that overbroad regulations may
chill commercial speech convinced us to extend the overbreadth
doctrine into the commercial speech area. Bates v. State Bar of
Ariz.,
433 U. S.
350, 380-381 (1977).
671
We have never set forth a general test to determine when a
procedural safeguard is required by the First Amendment-just as we
have never set forth a general test to determine what constitutes a
compelling state interest, see Boos v. Barry,
485 U. S. 312, 324
(1988), or what categories of speech are so lacking in value that
they fall outside the protection of the First Amendment, New York
v. Ferber,
458 U. S.
747, 763-764 (1982), or many other matters-and we do not
purport to do so now. But though we agree with JusTICE SCALIA that
the lack of such a test is inconvenient, see post, at 687-688, this
does not relieve us of our responsibility to decide the case that
is before us today. Both JUSTICE SCALIA and we agree that some
procedural requirements are mandated by the First Amendment and
some are not. See post, at 686. None of us have discovered a
general principle to determine where the line is to be drawn. See
post, at 686-688. We must therefore reconcile ourselves to
answering the question on a case-by-case basis, at least until some
workable general rule emerges.
Accordingly, all we say today is that the propriety of a
proposed procedure must turn on the particular context in which the
question arises-on the cost of the procedure and the relative
magnitude and constitutional significance of the risks it would
decrease and increase. And to evaluate these factors here we have
to return to the issue we dealt with in Connick and in the cases
that came before it: What is it about the government's role as
employer that gives it a freer hand in regulating the speech of its
employees than it has in regulating the speech of the public at
large?
B
We have never explicitly answered this question, though we have
always assumed that its premise is correct-that the government as
employer indeed has far broader powers than does the government as
sovereign. See, e. g., Pickering, 391 U. S., at 568; Civil Service
Comm'n v. Letter Carri-
672
Opinion of O'CONNOR, J.
ers,
413 U. S.
548, 564 (1973); Connick, 461 U. S., at 147. This assumption is
amply borne out by considering the practical realities of
government employment, and the many situations in which, we
believe, most observers would agree that the government must be
able to restrict its employees' speech.
To begin with, even many of the most fundamental maxims of our
First Amendment jurisprudence cannot reasonably be applied to
speech by government employees. The First Amendment demands a
tolerance of "verbal tumult, discord, and even offensive
utterance," as "necessary side effects of ... the process of open
debate," Cohen v. California,
403 U. S. 15, 24-25
(1971). But we have never expressed doubt that a government
employer may bar its employees from using Mr. Cohen's offensive
utterance to members of the public or to the people with whom they
work. "Under the First Amendment there is no such thing as a false
idea," Gertz, supra, at 339; the "fitting remedy for evil counsels
is good ones," Whitney v. California,
274 U. S. 357, 375 (1927)
(Brandeis, J., concurring). But when an employee counsels her
co-workers to do their job in a way with which the public employer
disagrees, her managers may tell her to stop, rather than relying
on counterspeech. The First Amendment reflects the "profound
national commitment to the principle that debate on public issues
should be uninhibited, robust, and wide-open." New York Times Co.
v. Sullivan,
376 U.
S. 254, 270 (1964). But though a private person is perfectly
free to uninhibitedly and robustly criticize a state governor's
legislative program, we have never suggested that the Constitution
bars the governor from firing a high-ranking deputy for doing the
same thing. Cf. Branti v. Finkel,
445 U. S. 507, 518
(1980). Even something as close to the core of the First Amendment
as participation in political campaigns may be prohibited to
government employees. Broadrick v. Oklahoma,
413 U. S. 601 (1973);
Letter Carriers, supra; Public Workers v. Mitchell,
330 U. S. 75 (1947).
673
Government employee speech must be treated differently with
regard to procedural requirements as well. For example, speech
restrictions must generally precisely define the speech they
target. Baggett v. Bullitt,
377 U. S. 360, 367368
(1964); Hustler Magazine, Inc. v. Falwell,
485 U. S. 46, 55 (1988).
Yet surely a public employer may, consistently with the First
Amendment, prohibit its employees from being "rude to customers," a
standard almost certainly too vague when applied to the public at
large. Cf. Arnett v. Kennedy,
416 U. S. 134, 158-162
(1974) (plurality opinion) (upholding a regulation that allowed
discharges for speech that hindered the "efficiency of the
service");
id., at 164 (Powell, J., concurring in part and
concurring in result in part) (agreeing on this point).
Likewise, 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. Few of the
examples we have discussed involve tangible, present interference
with the agency's operation. The danger in them is mostly
speculative. One could make a respectable argument that political
activity by government employees is generally not harmful, see
Public Workers v. Mitchell, supra, at 99; or that high officials
should allow more public dissent by their subordinates, see
Connick, supra, at 168-169 (Brennan, J., dissenting); Whistleblower
Protection Act of 1989, 103 Stat. 16, or that even in a government
workplace the free market of ideas is superior to a command
economy. But we have given substantial weight to government
employers' reasonable predictions of disruption, even when the
speech involved is on a matter of public concern, and even though
when the government is acting as sovereign our review of
legislative predictions of harm is considerably less deferential.
Compare, e. g., Connick, supra, at 151-152; Letter Carriers, supra,
at 566-567, with Sable Communications of Cal., Inc. v. FCC,
492 U. S. 115,
129 (1989); Texas v. Johnson,
674
Opinion of O'CONNOR, J.
491 U. S. 397,
409 (1989). Similarly, we have refrained from intervening in
government employer decisions that are based on speech that is of
entirely private concern. Doubtless some such speech is sometimes
nondisruptive; doubtless it is sometimes of value to the speakers
and the listeners. But we have declined to question government
employers' decisions on such matters. Connick, supra, at
146-149.
This does not, of course, show that the First Amendment should
play no role in government employment decisions. Government
employees are often in the best position to know what ails the
agencies for which they work; public debate may gain much from
their informed opinions. Pickering, supra, at 572. And a government
employee, like any citizen, may have a strong, legitimate interest
in speaking out on public matters. In 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.
See, e. g., Rankin v. McPherson,
483 U. S. 378, 388
(1987); Connick, supra, at 152; Pickering, supra, at 569571.
Moreover, the government may certainly choose to give additional
protections to its employees beyond what is mandated by the First
Amendment, out of respect for the values underlying the First
Amendment, values central to our social order as well as our legal
system. See, e.
g., Whistleblower Protection Act of 1989,
supra.
But the above examples do show that constitutional review of
government employment decisions must rest on different principles
than review of speech restraints imposed by the government as
sovereign. The restrictions discussed above are allowed not just
because the speech interferes with the government's operation.
Speech by private people can do the same, but this does not allow
the government to suppress it.
Rather, the extra power the government has in this area comes
from the nature of the government's mission as employer. Government
agencies are charged by law with
675
doing particular tasks. Agencies hire employees to help do those
tasks as effectively and efficiently as possible. When someone who
is paid a salary so that she will contribute to an agency's
effective operation begins to do or say things that detract from
the agency's effective operation, the government employer must have
some power to restrain her. The reason the governor may, in the
example given above, fire the deputy is not that this dismissal
would somehow be narrowly tailored to a compelling government
interest. It is that the governor and the governor's staff have a
job to do, and the governor justifiably feels that a quieter
subordinate would allow them to do this job more effectively.
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.
C 1
The Court of Appeals' decision, we believe, gives insufficient
weight to the government's interest in efficient employment
decisionmaking. In other First Amendment contexts the need to
safeguard possibly protected speech may indeed outweigh the
government's efficiency interests. See, e.
g., Freedman v.
Maryland,
380 U. S.
51 (1965); Speiser v. Randall, 357 U. S., at 526. But where the
government is acting as employer, its efficiency concerns should,
as we discussed above, be assigned a greater value.
The problem with the Court of Appeals' approach-under which the
facts to which the Connick test is applied are de-
676
Opinion of O'CONNOR, J.
termined by the judicial factfinder-is that it would force the
government employer to come to its factual conclusions through
procedures that substantially mirror the evidentiary rules used in
court. The government manager would have to ask not what
conclusions she, as an experienced professional, can draw from the
circumstances, but rather what conclusions a jury would later draw.
If she relies on hearsay, or on what she knows about the accused
employee's character, she must be aware that this evidence might
not be usable in court. If she knows one party is, in her personal
experience, more credible than another, she must realize that the
jury will not share that personal experience. If she thinks the
alleged offense is so egregious that it is proper to discipline the
accused employee even though the evidence is ambiguous, she must
consider that a jury might decide the other way.
But employers, public and private, often do rely on hearsay, on
past similar conduct, on their personal knowledge of people's
credibility, and on other factors that the judicial process
ignores. Such reliance may sometimes be the most effective way for
the employer to avoid future recurrences of improper and disruptive
conduct. What works best in a judicial proceeding may not be
appropriate in the employment context. If one employee accuses
another of misconduct, it is reasonable for a government manager to
credit the allegation more if it is consistent with what the
manager knows of the character of the accused. Likewise, a manager
may legitimately want to discipline an employee based on complaints
by patrons that the employee has been rude, even though these
complaints are hearsay.
It is true that these practices involve some risk of erroneously
punishing protected speech. The government may certainly choose to
adopt other practices, by law or by contract. But we do not believe
that the First Amendment requires it to do so. Government employers
should be allowed to use personnel procedures that differ from the
evidentiary
677
rules used by courts, without fear that these differences will
lead to liability.
2
On the other hand, we do not believe that the court must apply
the Connick test only to the facts as the employer thought them to
be, without considering the reasonableness of the employer's
conclusions. Even in situations where courts have recognized the
special expertise and special needs of certain decisionmakers, the
deference to their conclusions has never been complete. Cf. New
Jersey v. T. L. 0.,
469 U. S. 325, 342-343
(1985); United States v. Leon,
468 U. S. 897, 914
(1984); Universal Camera Corp. v. NLRB,
340 U. S. 474, 490-491
(1951). It is necessary that the decisionmaker reach its conclusion
about what was said in good faith, rather than as a pretext; but it
does not follow that good faith is sufficient. JUSTICE SCALIA is
right in saying that we have often held various laws to require
only an inquiry into the decisionmaker's intent, see post, at
690-691, but, as discussed supra in Part II-A, this has not been
our view of the First Amendment.
We think employer decisionmaking will not be unduly burdened by
having courts look to the facts as the employer reasonably found
them to be. It may be unreasonable, for example, for the employer
to come to a conclusion based on no evidence at all. Likewise, it
may be unreasonable for an employer to act based on extremely weak
evidence when strong evidence is clearly available-if, for
instance, an employee is accused of writing an improper letter to
the editor, and instead of just reading the letter, the employer
decides what it said based on unreliable hearsay.
If an employment action is based on what an employee supposedly
said, and a reasonable supervisor would recognize that there is a
substantial likelihood that what was actually said was protected,
the manager must tread with a certain amount of care. This need not
be the care with which trials, with their rules of evidence and
procedure, are
678
Opinion of O'CONNOR, J.
conducted. It should, however, be the care that a reasonable
manager would use before making an employment decision-discharge,
suspension, reprimand, or whatever elseof the sort involved in the
particular case. JUSTICE SCALIA correctly points out that such care
is normally not constitutionally required unless the employee has a
protected property interest in her job, post, at 688; see also
Board of Regents of State Colleges v. Roth,
408 U. S. 564, 576-578
(1972); but we believe that the possibility of inadvertently
punishing someone for exercising her First Amendment rights makes
such care necessary.
Of course, there will often be situations in which reasonable
employers would disagree about who is to be believed, or how much
investigation needs to be done, or how much evidence is needed to
come to a particular conclusion. In those situations, many
different courses of action will necessarily be reasonable. Only
procedures outside the range of what a reasonable manager would use
may be condemned as unreasonable.
Petitioners argue that Mt. Healthy City Bd. of Ed. v.
Doyle,
429 U. S.
274 (1977), forecloses a reasonableness test, and holds instead
that the First Amendment was not violated unless" 'the
defendant[s'] intent [was] to violate the plaintiff['s]
constitutional rights.'" Brief for Petitioners 25; see also post,
at 690 (SCALIA, J., dissenting). JUSTICE SCALIA makes a similar
argument based on Pickering, Connick, and Perry, which alluded to
the impropriety of management "retaliation" for protected speech.
Post, at 689. But in all those cases the employer assertedly knew
the true content of the employee's protected speech, and fired the
employee in part because of it. In none of them did we have
occasion to decide what should happen if the defendants hold an
erroneous and unreasonable belief about what plaintiff said. These
cases cannot be read as foreclosing an argument that they never
dealt with. United States v. L. A. Tucker Truck Lines, Inc.,
344 U. S. 33, 38
(1952).
679
We disagree with JUSTICE STEVENS' contention that the test we
adopt "provides less protection for a fundamental constitutional
right than the law ordinarily provides for less exalted rights."
Post, at 695. We have never held that it is a violation of the
Constitution for a government employer to discharge an employee
based on substantively incorrect information. Where an employee has
a property interest in her job, the only protection we have found
the Constitution gives her is a right to adequate procedure. And an
at-will government employee-such as Churchill apparently was, App.
to Pet. for Cert. 70-generally has no claim based on the
Constitution at all.
Of course, an employee may be able to challenge the substantive
accuracy of the employer's factual conclusions under state contract
law, or under some state statute or commonlaw cause of action. In
some situations, the employee may even have a federal statutory
claim. See NLRB v. Burnup & Sims, Inc.,
379 U. S. 21 (1964).
Likewise, the State or Federal Governments may, if they choose,
provide similar protection to people fired because of their speech.
But this protection is not mandated by the Constitution.
The one pattern from which our approach does diverge is the
broader protection normally given to people in their relationship
with the government as sovereign. See, e.
g., New York Times
Co. v. Sullivan, 376 U. S., at 279-280, cited post, at 696, 699
(STEVENS, J., dissenting). But the reasons for this are those
discussed supra in Part II-B: "[O]ur 'profound national commitment'
to the freedom of speech," post, at 699 (STEVENS, J., dissenting),
must of necessity operate differently when the government acts as
employer rather than sovereign.
III
Applying the foregoing to this case, it is clear that if
petitioners really did believe Perkins-Graham's and Ballew's
680
Opinion of O'CONNOR, J.
story, and fired Churchill because of it, they must win. Their
belief, based on the investigation they conducted, would have been
entirely reasonable. After getting the initial report from Ballew,
who overheard the conversation, Waters and Davis approached and
interviewed Perkins-Graham, and then interviewed Ballew again for
confirmation. In response to Churchill's grievance, Hopper met
directly with Churchill to hear her side of the story, and
instructed Magin to interview Ballew one more time. Management can
spend only so much of their time on anyone employment decision. By
the end of the termination process, Hopper, who made the final
decision, had the word of two trusted employees, the endorsement of
those employees' reliability by three hospital managers, and the
benefit of a face-to-face meeting with the employee he fired. With
that in hand, a reasonable manager could have concluded that no
further time needed to be taken. As respondents themselves point
out, "if the belief an employer forms supporting its adverse
personnel action is 'reasonable,' an employer has no need to
investigate further." Brief for Respondents 39.
And under the Connick test, Churchill's speech as reported by
Perkins-Graham and Ballew was unprotected. Even if Churchill's
criticism of cross-training reported by Perkins-Graham and Ballew
was speech on a matter of public concern-something we need not
decide-the potential disruptiveness of the speech as reported was
enough to outweigh whatever First Amendment value it might have
had. According to Ballew, Churchill's speech may have substantially
dampened Perkins-Graham's interest in working in obstetrics.
Discouraging people from coming to work for a department certainly
qualifies as disruption. Moreover, Perkins-Graham perceived
Churchill's statements about Waters to be "unkind and
inappropriate," and told management that she knew they could not
continue to "tolerate that kind of negativism" from Churchill. This
is strong evidence that Churchill's complaining, if not dealt with,
threatened to un-
681
dermine management's authority in Perkins-Graham's eyes. And
finally, Churchill's statement, as reported by PerkinsGraham, that
it "wasn't possible" to "wipe the slate clean" between her and
Waters could certainly make management doubt Churchill's future
effectiveness. As a matter of law, this potential disruptiveness
was enough to outweigh whatever First Amendment value the speech
might have had.
This is so even if, as Churchill suggests, Davis and Waters were
"[d]eliberately [i]ndifferent," Brief for Respondents 31, to the
possibility that much of the rest of the conversation was solely
about cross-training. So long as Davis and Waters discharged
Churchill only for the part of the speech that was either not on a
matter of public concern, or on a matter of public concern but
disruptive, it is irrelevant whether the rest of the speech was,
unbeknownst to them, both on a matter of public concern and
nondisruptive. The Connick test is to be applied to the speech for
which Churchill was fired. Cf. Connick, 461 U. S., at 149
(evaluating the disruptiveness of part of plaintiff's speech
because that part was "upon a matter of public concern and
contributed to [plaintiff's] discharge" (emphasis added)); Mt.
Healthy, 429 U. S., at 286287. An employee who makes an unprotected
statement is not immunized from discipline by the fact that this
statement is surrounded by protected statements.
Nonetheless, we agree with the Court of Appeals that the
District Court erred in granting summary judgment in petitioners'
favor. Though Davis and Waters would have been justified in firing
Churchill for the statements outlined above, there remains the
question whether Churchill was actually fired because of those
statements, or because of something else. See Mt. Healthy, supra,
at 286-287.
Churchill has produced enough evidence to create a material
issue of disputed fact about petitioners' actual motivation.
Churchill had criticized the cross-training policy in the past;
management had exhibited some sensitivity about the criticisms;
Churchill pointed to some other conduct by hospi-
682
tal management that, if viewed in the light most favorable to
her, would show that they were hostile to her because of her
criticisms. 977 F. 2d, at 1125-1126. A reasonable factfinder might
therefore, on this record, conclude that petitioners actually fired
Churchill not because of the disruptive things she said to
Perkins-Graham, but because of nondisruptive statements about
cross-training that they thought she may have made in the same
conversation, or because of other statements she may have made
earlier. If this is so, then the court will have to determine
whether those statements were protected speech, a different matter
than the one before us now.
Because of our conclusion, we need not determine whether the
defendants were entitled to qualified immunity. We also need not
decide whether the defendants were acting pursuant to hospital
policy or custom, because that question, though argued by
petitioners in their merits brief, was not presented in the
petition for certiorari. See Izumi Seimitsu Kogyo Kabushiki Kaisha
v. U. S. Philips Corp.,
510 U. S. 27 (1993)
(per curiam). Rather, we vacate the judgment of the Court of
Appeals and remand the case for further proceedings consistent with
this opinion.
So ordered.
JUSTICE SOUTER, concurring.
I
I join JUSTICE O'CONNOR'S plurality opinion stating that, under
the Free Speech Clause, a public employer who reasonably believes a
third-party report that an employee engaged in constitutionally
unprotected speech may punish the employee in reliance on that
report, even if it turns out that the employee's actual remarks
were constitutionally protected. I add these words to emphasize
that, in order to avoid liability, the public employer must not
only reasonably investigate the third-party report, but must also
actually be-
683
lieve it. Under the plurality's opinion, an objectively
reasonable investigation that fails to convince the employer that
the employee actually engaged in disruptive or otherwise
unprotected speech does not inoculate the employer against
constitutional liability. A public employer violates the Free
Speech Clause, that is, by invoking a third-party report to
penalize an employee when the employer, despite the report and the
reasonable investigation into it, believes or genuinely suspects
that the employee's speech was protected in its entirety or in that
part on which the employer purports to rely in taking disciplinary
action; or if the employer invokes the third-party report merely as
a pretext to shield disciplinary action taken because of protected
speech the employer believes or genuinely suspects that the
employee uttered at another time.
First Amendment limitations on public employers, as the
plurality explains, must reflect a balance of the public employer's
interest in accomplishing its mission and the public employee's
interest in speaking on matters of public concern. See ante, at
668-675. Where an employer penalizes an employee on the basis of a
third-party report of speech that the employer should have
suspected, based on the content of the report and the employer's
familiarity with the employee and the workplace, to have been
constitutionally protected, this balance must reflect the facts
that employees' speech on matters of public concern will often (as
we said of employees' union activities) "engende[r] strong emotions
and giv[e] rise to active rumors," and, critically, that "the
example of employees who are discharged on false charges would or
might have a deterrent effect on other employees." NLRB v. Burnup
& Sims, Inc.,
379
U. S. 21, 23 (1964); see also Rankin v. McPherson,
483 U. S. 378, 384 (1987)
(" '[T]he threat of dismissal from public employment is ... a
potent means of inhibiting speech''') (quoting Pickering v. Board
of Ed. of Township High School Dist. 205, Will Cty.,
391 U. S. 563, 574
(1968)). As the plurality's opinion frankly recognizes,
684
permitting public employers to punish employees in reliance on
third-party reports "involve[s] some risk of erroneously punishing
protected speech." Ante, at 676.
This is a risk that the public employer's interests justify
tolerating, as the plurality's opinion explains, but only when the
public employer's conduct was reasonable, see ante, at 677-678, and
only when the employer "really did believe" the third-party report,
ante, at 679; see also ante, at 680 (an employer need not
investigate further" 'if the belief an employer forms supporting
its adverse personnel action is "reasonable"''') (citation
omitted); ante, at 677 (courts must "look to the facts as the
employer reasonably found them to be") (emphasis deleted).* A
public employer who did not really believe that the employee
engaged in disruptive or otherwise punishable speech can assert no
legitimate interest strong enough to justify chilling protected
expression, whether the employer affirmatively disbelieved the
third-party report or merely doubted its accuracy. Imposing
liability on such an employer respects the "longstanding
recognition that the First Amendment's primary aim is the full
protection of speech upon issues of public concern, as well as the
practical realities involved in the administration of a government
office." Connick v. Myers,
461 U. S. 138, 154
(1983).
Accordingly, even though petitioners conducted an objectively
reasonable investigation into Ballew's report about respondent
Churchill's conversation with Perkins-Graham, I believe that
petitioners' dismissal of Churchill would have violated the Free
Speech Clause if after the investigation they doubted the accuracy
of the report and fired Churchill for speech, or for a portion of
her speech, that they genuinely suspected was nondisruptive
(assuming that the speech was
*In addition, and also because of the risk of chilling protected
expression, the public employer must believe that the discipline
chosen is an appropriate, and not excessive, response to the
employee's speech as reported. I do not understand respondents in
this case to raise any claim that the discharge was pre textual in
this respect.
685
actually on a matter of public concern). Though under the
plurality's opinion the presentation of such an argument is open to
Churchill on remand, Churchill would not, of course, have to rely
on it if she can establish that, despite the reasonable
investigation, petitioners believed that Churchill said nothing
disruptive in her conversation with Perkins-Graham; that they
believed that Churchill made some nondisruptive remarks to
Perkins-Graham and fired her because of those remarks; or that they
fired her because of nondisruptive comments about cross-training
they knew she made earlier (again, assuming in each case that the
speech at issue was on a matter of public concern).
II
Though JUSTICE O'CONNOR'S opinion speaks for just four Members
of the Court, the reasonableness test it sets out is clearly the
one that lower courts should apply. A majority of the Court agrees
that employers whose conduct survives the plurality's
reasonableness test cannot be held constitutionally liable
(assuming the absence of pretext), see ante, at 679-681 (plurality
opinion); post, at 686-692 (SCALIA, J., concurring in judgment);
and a majority (though a different one) is of the view that
employers whose conduct fails the plurality's reasonableness test
have violated the Free Speech Clause, see ante, at 677-678
(plurality opinion); post, at 694699 (STEVENS, J., dissenting); see
also post, at 697-698, n. 4 (STEVENS, J., dissenting) ("JUSTICE
O'CONNOR appropriately rejects [JUSTICE SCALIA'S] position, at
least for those instances in which the employer unreasonably
believes an incorrect report concerning speech that was in fact
protected and disciplines an employee based upon that
misunderstanding. I, of course, agree with JUSTICE O'CONNOR that
discipline in such circumstances violates the First Amendment").
Accordingly, the plurality opinion may be taken to state the
holding of the Court. See Marks v. United States,
430 U. S. 188,193-194
(1977) (discussing Book Named "John Cleland's
686
SCALIA, J., concurring in judgment
Memoirs of a Woman of Pleasure" v. Attorney General of Mass.,
383 U. S. 413
(1966)).
JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE THOMAS
join, concurring in the judgment.
The central issue in this case is whether we shall adhere to our
previously stated rule that a public employer's disciplining of an
employee violates the Speech and Press Clause of the First
Amendment only if it is in retaliation for the employee's speech on
a matter of public concern. JUSTICE O'CONNOR would add to this
prohibition a requirement that the employer conduct an
investigation before taking disciplinary action in certain
circumstances. This recognition of a broad new First Amendment
procedural right is in my view unprecedented, superfluous to the
decision in the present case, unnecessary for protection of
public-employee speech on matters of public concern, and
unpredictable in its application and consequences.
I
I do not doubt that the First Amendment contains within it some
procedural prescriptions-that in some circumstances, "the freedom
of speech" recognized by the Constitution consisted of a right to
speak unless and until certain procedures to prevent the speech had
first been complied with. Thus, for example, I have no quarrel in
principle with (though I have not inquired into the historical
justification for) decisions such as Freedman v. Maryland,
380 U. S. 51 (1965), which
established the administrative and judicial review provisions that
a film licensing process must contain in order to avoid
constituting an unconstitutional prior restraint, see Patterson v.
Colorado ex rel. Attorney General of Colo.,
205 U. S. 454, 462 (1907)
(Holmes, J.).
We have, however, been most circumspect about acknowledging
procedural components of the First Amendment. Almost all of the
cases JUSTICE O'CONNOR cites as exemplars are elaborations upon the
limitation on defamation suits first
687
announced in New York Times Co. v. Sullivan,
376 U. S. 254 (1964).
See, e. g., Bose Corp. v. Consumers Union of United States, Inc.,
466 U. S. 485
(1984); Philadelphia Newspapers, Inc. v. Hepps,
475 U. S. 767 (1986);
Masson v. New Yorker Magazine, Inc.,
501 U. S. 496 (1991).
These cases deal with alleged governmental deprivation of the
freedom of speech specifically through the judicial process, in
which context procedures are necessarily central to the discussion.
* Speiser v. Randall,
357 U. S. 513 (1958),
also involved judicial (and pre-judicial adjudicative) process,
holding that a state tax deduction could not be denied for a
speech-related reason (advocacy of overthrow of the Government of
the United States or of the State by unlawful means) by placing the
burden of disproving that speech-related reason upon the taxpayer.
Moreover, although the existence of a First Amendment right was
central to the Court's reasoning, the decision was squarely rested
on the Due Process Clause, see id., at 529, and not on the First
Amendment, see id., at 517, n.3. The last case cited by JUSTICE
O'CONNOR, Freedman, supra, was, as I described earlier, a prior
restraint case; review and requirement of procedures were to be
expected.
In today's opinion by JUSTICE O'CONNOR, our previous parsimony
is abandoned, in favor of a general principle that "it is important
to ensure not only that the substantive First Amendment standards
are sound, but also that they are applied through reliable
procedures," ante, at 669. Although we are assured that "not every
procedure that may safeguard protected speech is constitutionally
mandated," ante, at 670, the implication of that assurance is that
many are. We never are informed how to tell mandated
speechsafeguarding procedures from nonmandated ones, except for the
clue that "each procedure involves a different mix of
administrative burden, risk of erroneous punishment of
*Moreover, the remedy in that context is self-evident: remand
for readjudication pursuant to the proper procedures. In the
present context, by contrast, the remedy is not all clear, see
infra, at 693-694.
688
SCALIA, J., concurring in judgment
protected speech, and risk of erroneous exculpation of
unprotected speech,"
ibid.
The proposed right to an investigation before dismissal for
speech not only expands the concept of "First Amendment procedure"
into brand new areas, but brings it into disharmony with our cases
involving government employment decided under the Due Process
Clause. As JUSTICE O'CONNOR acknowledges, see ante, at 678, those
cases hold that public employees who, like Churchill, lack a
protected property interest in their jobs, are not entitled to any
sort of a hearing before dismissal. See, e. g., Board of Regents of
State Colleges v. Roth,
408 U. S. 564, 577-578
(1972). Such employees can be dismissed with impunity (insofar as
federal constitutional protections are concerned) for the reason,
accurate or not, that they are incompetent, that they have been
guilty of unexcused absences, that they have stolen money from the
faculty honor bar-or indeed for no reason at all. But under JUSTICE
O'CONNOR'S opinion, if a reason happens to be given, and if the
reason relates to speech and "there is a substantial likelihood
that what was actually said was protected," (whatever that means),
ante, at 677, an investigation to assure that the speech was not
the sort protected by the First Amendment must be conducted-after
which, presumably, the dismissal can still proceed even if the
speech was not what the employer had thought it was, so long as it
was not speech on an issue of public importance. In the present
case, for example, if the requisite "First Amendment investigation"
disclosed that Nurse Churchill had not been demeaning her
superiors, but had been complaining about the perennial
end-of-season slump of the Chicago Cubs, her dismissal, erroneous
as it was, would have been perfectly OK.
This is a strange jurisprudence indeed. And the reason it is
strange is that JUSTICE O'CONNOR has in effect converted the
government employer's First Amendment liability with respect to
"public concern" speech from liability for
689
intentional wrong to liability for mere negligence. What she
proposes is, at bottom, not new procedural protections for
established First Amendment rights, but rather new First Amendment
rights. Pickering v. Board of Ed. of Township High School Dist.
205, Will Cty.,
391
U. S. 563 (1968), did not require government-employer
"protection" of "public concern" speech, but merely forbade
governmentemployer hostility to such speech. "[I]t is essential,"
Pickering said, "that [public employees] be able to speak out
freely on such questions without fear of retaliatory dismissal."
Id., at 572 (emphasis added). See also Connick v. Myers,
461 U. S. 138, 149 (1983)
(same). The critical inquiry for the factfinder in these cases is
whether the employment decision was, "in fact, made in retaliation
for [the] exercise of the constitutional right of free speech."
Perry v. Sindermann,
408 U. S. 593, 598
(1972). A category of employee speech is certainly not being
"retaliated against" if it is no more and no less subject to being
mistaken for a disciplinable infraction than is any other category
of speech or conduct.
II
The creation of procedural First Amendment rights in this case
is all the more remarkable because it is unnecessary to the
disposition of the matter. After imposing the new duty upon
government employers, JUSTICE O'CONNOR'S opinion concludes that it
was satisfied anyway-i. e., that the investigation conducted by the
hospital was "entirely reasonable." Ante, at 680. And then, to make
the creation of the new duty doubly irrelevant, it finds that the
case must be remanded anyway for a pretext inquiry: whether
"petitioners actually fired Churchill not because of the disruptive
things she said to Perkins-Graham, but because of nondisruptive
statements about cross-training that they thought she may have made
in the same conversation, or because of other statements she may
have made earlier." Ante, at 682; see also ante, at 682-685
(SOUTER, J., concurring). Surely this
690
SCALIA, J., concurring in judgment
offends the doctrine that constitutional questions that need not
be addressed should be avoided.
The requirement of a pretext inquiry, I think, renders creation
of the new First Amendment right of investigation not only
superfluous to the disposition of the present case, but superfluous
to the protection of previously established speech rights. JUSTICE
O'CONNOR makes no attempt to justify the right of investigation on
historical grounds (it is quite unheard of). The entire asserted
basis for it is pragmatic and functional: without it the government
employee's right not to be fired for his speech cannot be
protected. The availability of a pretext inquiry disproves that
argument. Judicial inquiry into the genuineness of a public
employer's asserted permissible justification for an employment
decision-be it unprotected speech, general insubordination, or
laziness-is all that is necessary to avoid the targeting of "public
interest" speech condemned in Pickering.
Our cases have hitherto considered this sort of inquiry all the
protection needed. Mt. Healthy City Bd. of Ed. v. Doyle,
429 U. S. 274 (1977),
involved an arguably weaker case for the public employer than the
present one, in that there was a "mixed motive" for the
disciplinary action-that is, the employer admitted that the "public
concern" speech was part of the reason for the discharge, but
asserted that other valid reasons were in any event sufficient. In
deciding that case, we found no need to invent procedural
requirements, but simply directed the District Court "to determine
whether the Board had shown by a preponderance of the evidence that
it would have reached the same decision as to respondent's
[e]mployment even in the absence of the protected conduct." Id., at
287. The objective, we said, was to "protec[t] against the invasion
of constitutional rights without commanding undesirable
consequences not necessary to the assurance of those rights."
Ibid.
The Court considers "pretext" analysis sufficient in many other
areas. See, e. g., Eastman Kodak Co. v. Image Techni-
691
cal Services, Inc.,
504 U. S. 451, 484 (1992)
(antitrust laws); Hernandez v. New York,
500 U. S. 352, 363-364
(1991) (plurality opinion) (constitutionality of peremptory
challenges); Patterson v. McLean Credit Union,
491 U. S. 164, 187-188
(1989) (employment discrimination suit under 42 U. S. C. § 1981);
New York v. Burger,
482 U. S. 691, 716-717,
n. 27 (1987) (Fourth Amendment challenge to administrative
searches); Sure-Tan, Inc. v. NLRB,
467 U. S. 883, 895-896,
n. 6 (1984) (unfair labor practice suit under the National Labor
Relations Act); Geduldig v. Aiello,
417 U. S. 484, 496497, n.
20 (1974) (Equal Protection Clause sex-discrimination claim against
legislation); McDonnell Douglas Corp. v. Green,
411 U. S. 792, 804-805
(1973) (discrimination claim under Title VII). And it considers
"pretext" analysis sufficient in other First Amendment contexts.
For example, in Renton v. Playtime Theatres, Inc.,
475 U. S. 41, 54 (1986),
after holding that zoning laws restricting the location of movie
theaters do not violate the First Amendment unless they are a
pretext for preventing free speech, we did not think it necessary
to prescribe "reasonable" procedures for zoning commissions across
the Nation; we left it to factfinders to determine whether zoning
regulations are prompted by legitimate or improper factors. See
also Arcara v. Cloud Books, Inc.,
478 U. S. 697, 708 (1986)
(O'CONNOR, J., concurring) (same). There is no reason why the same
approach should not suffice here.
JUSTICE STEVENS believes that "pretext" review is inadequate,
since "it provides less protection for a fundamental constitutional
right than the law ordinarily provides for less exalted rights";
and "[o]rdinarily," he contends, "when someone acts to another
person's detriment based upon a factual judgment, the actor assumes
the risk that an impartial adjudicator may come to a different
conclusion." Post, at 696. But that is true in contractual realms
only to the extent that the contract provides a "right" whose
elimination constitutes a legal "detriment." An employee
dismissable at will can
692
SCALIA, J., concurring in judgment
be fired on the basis of an erroneous factual judgment, with no
legal recourse-which is what happened here. Churchill also had a
noncontractual right: the right not to be dismissed (even from an
at-will government job) in retaliation for her expression of views
on a matter of public concern. That right was not violated, since
she was dismissed for another reason, erroneous though it may have
been. The issue before us has nothing to do with according the
deprivation of a right the ordinary degree of protection; it has to
do with expanding the protection accorded a government employee's
public interest speech from (1) protection against retaliation, to
(2) protection against retaliation and mistake.
III
The approach to this case adopted by JUSTICE O'CONNOR'S opinion
provides more questions than answers, subjecting public employers
to intolerable legal uncertainty. Despite the difficulties courts
already encounter in distinguishing between protected and
unprotected speech, see, e. g., Miller v. California,
413 U. S. 15, 22 (1973),
and in determining whether speech pertains to a matter of public
concern, compare O'Connor v. Steeves,
994 F.2d
905, 915 (CA1), cert. denied, 510 U. S. 1024 (1993), with
Gillum v. City of Kerrville,
3 F.3d
117, 120-121 (CA5 1993), cert. denied, 510 U. S. 1072 (1994),
JUSTICE O'CONNOR creates yet another speechrelated puzzlement that
government employers, judges, and juries must struggle to solve.
The new constitutional duty to provide certain minimum procedural
protections is triggered when "an employment action is based on
what an employee supposedly said, and a reasonable supervisor would
recognize that there is a substantial likelihood that what was
actually said was protected," ante, at 677. But on what does the
"reasonable supervisor" base his judgment as to whether "there is a
substantial likelihood that what was actually said was protected?"
Can he base it upon the report of what was said? Seemingly not,
since otherwise JUSTICE O'CONNOR
693
would not have found the minimum procedural protection of
investigation to have been required in the present case (the report
of Churchill's conversation gave no hint of protected speech). It
remains entirely unclear what the employer's judgment must be based
on. To avoid liability, he had better assume that it must be based
on what was actually said-which means that he had better
investigate the incident in order to determine whether he has an
obligation to investigate the incident. Hopefully I am wrong,
however, and (despite today's holding) the basis for judging
whether investigation is required will be solely the report. Then
the public employer will only have to figure out what a
hypothetical reasonable supervisor would infer about actual speech
from that report, and then determine whether that constructed
"actual speech" has a substantial likelihood of being on a matter
of public concern. May the employer at least assume that no
investigation is required if the report does not mention speech? Or
can he be liable if the recommended basis for the discipline (for
example, "disrupting the workplace") had a substantial likelihood
of involving speech which would have had a substantiallikelihood of
being on a subject of public concern? I suppose ultimately it will
be up to the jury to answer all these nice, once-removed questions.
Or come to think of it, perhaps it will be up to the judge. JUSTICE
O'CONNOR does not specify whether all this is a question of law or
fact.
JUSTICE O'CONNOR states that "employer decisionmaking will not
be unduly burdened by having courts look to the facts as the
employer reasonably found them to be." Ante, at 677 (emphasis in
original). This explains the subsequent course of events when the
employer's investigation has been found reasonable: The court (or
the jury) decides whether, on the facts as found by the employer,
the speech was on a matter of public concern, and if not, whether
the employer's reliance on the report was pretextual. But what
happens when the employer's investigation has been found unrea-
694
sonable? I presume that there has then been established a
violation of the procedural component of the First Amendment-the
failure to treat possibly protected speech with the requisite
"amount of care" -without regard to whether the employee's speech
was in fact on a matter of public concern. JUSTICE O'CONNOR does
not reveal what the remedy for this violation is to be. There are
various possibilities: One could say that the discharge without
observance of the constitutionally requisite procedures is invalid,
and must be set aside unless and until those procedures are
complied with. Alternatively, one could charge the employer who
failed to conduct a reasonable investigation with knowledge of the
protected speech that a jury later finds-producing a sort of
constructive retaliatory discharge, and entitling the employee to
full reinstatement and damages. Or alternatively again, the jury
could be required to determine what information a reasonable
investigation would have turned up, and then to decide whether it
would have been permissible for the employer to fire the employee
based on that information.
These are only a few of the numerous questions left unanswered
by JUSTICE O'CONNOR'S opinion. Loose ends are the inevitable
consequence of judicial invention. We will spend decades trying to
improvise the limits of this new First Amendment procedure that is
unmentioned in text and unformed by tradition. It seems to me clear
that game is not worth the candle, given the adequacy of "pretext"
analysis to protect the constitutional interest at stake.
JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins,
dissenting.
This is a free country. Every American has the right to express
an opinion on issues of public significance. In the private sector,
of course, the exercise of that right may entail unpleasant
consequences. Absent some contractual or statutory provision
limiting its prerogatives, a private-sector
695
employer may discipline or fire employees for speaking their
minds. The First Amendment, however, demands that the government
respect its employees' freedom to express their opinions on issues
of public importance. As long as that expression is not unduly
disruptive, it simply may not provide the basis for discipline or
termination. The critical issues in a case of this kind are (1)
whether the speech is protected, and (2) whether it was the basis
for the sanction imposed on the employee.
Applying these standards to the case before us is quite
straightforward. Everyone agrees that respondent Cheryl Churchill
was fired because of what she said in a conversation with
co-workers during a dinner break. Given the posture in which this
case comes to us, we must assume that Churchill's statements were
fully protected by the First AmendmenU Nevertheless, the plurality
concludes that a dismissal for speech is valid as a matter of law
as long as the public employer reasonably believed that the
employee's speech was unprotected. See ante, at 677-678. This
conclusion is erroneous because it provides less protection for a
fundamental constitutional right than the law ordinarily provides
for less exalted rights, including contractual and statutory rights
applicable in the private sector.
If, for example, a hospital employee had a contract providing
that she could retain her job for a year if she followed the
employer's rules and did competent work, that employee
IOn review of the Court of Appeals' reversal of a summary
judgment for petitioners, we naturally accept as true the version
of Churchill's statements described in her testimony and that of
two supporting witnesses. See
977 F.2d
1114, 1118-1126
(CA7 1992). According to Churchill,
Thomas Koch, and Jean Welty, the dinner-break conversation
concerned the merits of hospital policy, and Churchill did not
direct any "personal criticism" against her supervisors. See
id., at 1118-1119, 1122. According to two other witnesses,
Melanie Perkins-Graham and Mary Lou Ballew, Churchill's speech was
filled with "unkind and inappropriate ... things," "negativism,"
and personal comment about petitioner Cynthia Waters and the
hospital administration. Id., at 1118-1119.
696
could not be fired because her supervisor reasonably but
mistakenly believed she had been late to work or given a patient
the wrong medicine. Ordinarily, when someone acts to another
person's detriment based upon a factual judgment, the actor assumes
the risk that an impartial adjudicator may come to a different
conclusion.2 Our legal system generally delegates the determination
of facts upon which important rights depend to neutral factfinders,
notwithstanding the attendant risks of error and
overdeterrence.
Federal constitutional rights merit at least the normal degree
of protection. Doubts concerning the ability of juries to find the
truth, an ability for which we usually have high regard, should be
resolved in favor of, not against, the protection of First
Amendment rights. See, e.
g., New York Times Co. v.
Sullivan,
376 U. S.
254, 279-280 (1964). Unfortunately, the plurality
underestimates the importance of freedom of speech for the more
than 18 million civilian employees of this country's Federal,
State, and local Governments,3 and subordinates that freedom to an
abstract interest in bureaucratic efficiency. The need for
governmental efficiency that so concerns the plurality is amply
protected by the substan-
2 In
NLRB v.
Burnup &
Sims, Inc.,
379 U. S. 21
(1964), two employee labor organizers were fired based upon a
report that they had threatened to dynamite the employer's plant if
a coming representation election was unsuccessful. The National
Labor Relations Board found that the employees had never made the
threatening statements. Although we recognized that the employer
had acted in good faith, this Court held that the discharge
"plainly violated" the organizers' right under § 8 of the National
Labor Relations Act. Id., at 22. "Union activity," we observed,
"often engenders strong emotions and gives rise to active rumors. A
protected activity acquires a precarious status if innocent
employees can be discharged while engaging in it, even though the
employer acts in good faith." Id., at 23. The plurality does not
explain why First Amendment rights should receive any lesser
protection than the statutory right at issue in
Burnup &
Sims.
3 See U. S. Dept. of Commerce, Statistical Abstract of the
United States 318 (113 ed. 1993) (Table No. 500) (figure from
1991).
697
tive limits on public employees' rights of expression. See
generally Connick v. Myers,
461 U. S. 138 (1983);
Pickering v. Board of Ed. of Township High School Dist. 205, Will
Cty.,
391 U. S.
563 (1968). Efficiency does not demand an additional layer of
deference to employers' "reasonable" factual errors. Today's ruling
will surely deter speech that would be fully protected under
Pickering and Connick.
The plurality correctly points out that we have never decided
whether the governing version of the facts in public employment
free speech cases is "what the government employer thought was
said, or ... what the trier of fact ultimately determines to have
been said." Ante, at 664.4 To
4JUSTICE SCALIA would recharacterize employees' right to free
speech as a more modest protection against "retaliatory"
discharges, a protection that would not extend to those terminated
for speech that was fully protected but incorrectly reported. The
only support he cites for this restrictive theory is that three of
our prior public employment speech opinions have used the word
"retaliation." See ante, at 688-689 (opinion concurring in
judgment) (citing Connick v. Myers,
461 U. S. 138, 149
(1983); Perry v. Sindermann,
408 U. S. 593, 598
(1972); Pickering v. Board of Ed. of Township High School Dist.
205, Will Cty.,
391
U. S. 563, 572 (1968)). Our use of that word in the cases
JUSTICE SCALIA cites, however, does not resolve the present
question, since none of those decisions involved any factual
dispute over the content of employee speech. More importantly,
other passages from two of those opinions support the view that the
causal connection between the employee's speech and her discharge
is all the "retaliation" that must be shown. See Perry, 408 U. S.,
at 598 (nonrenewal of a teacher's contract "may not be predicated
on his exercise of First and Fourteenth Amendment rights"); ibid.
("[A] teacher's public criticism of his superiors on matters of
public concern may be constitutionally protected and may,
therefore, be an impermissible basis for termination of his
employment"); Pickering, 391 U. S., at 574 ("In sum, ... a
teacher's exercise of his right to speak on issues of public
importance may not furnish the basis for his dismissal from public
employment"). Precedent certainly does not command JUSTICE SCALIA'S
approach, and nothing in the First Amendment recommends a rule that
makes ignorance or mistake a complete defense for a discharge based
on fully protected speech. JUSTICE O'CONNOR appropriately rejects
that position, at least for those instances in which the employer
unreasonably believes an incorrect report
698
me it is clear that the latter must be controlling. The First
Amendment assures public employees that they may express their
views on issues of public concern without fear of discipline or
termination as long as they do so in an appropriate manner and at
an appropriate time and place. A violation occurs when a public
employee is fired for uttering speech on a matter of public concern
that is not unduly disruptive of the operations of the relevant
agency. The violation does not vanish merely because the firing was
based upon a reasonable mistake about what the employee said.5 A
First Amendment claimant need not allege bad faith; the controlling
question is not the regularity of the agency's investigative
procedures, or the purity of its motives, but whether the
employee's freedom of speech has been "abridged."
The risk that a jury may ultimately view the facts differently
from even a conscientious employer is not, as the plurality would
have it, a needless fetter on public employers' ability to
discharge their duties. It is the normal means by which our legal
system protects legal rights and encourages those in authority to
act with care. Here, for example, attention to "conclusions a jury
would later draw," ante, at 676, about the content of Churchill's
speech might have caused petitioners to talk to Churchill about
what she said before deciding to fire her. There is nothing unfair
or onerous
concerning speech that was in fact protected and disciplines an
employee based upon that misunderstanding. I, of course, agree with
JUSTICE O'CONNOR that discipline in such circumstances violates the
First Amendment.
5 The reasonableness of the public employer's mistake would, of
course, bear on whether that employer should be liable for damages.
See Butz v. Economou,
438 U. S. 478, 507 (1978)
("Federal officials will not be liable for mere mistakes in
judgment, whether the mistake is one of fact or one of law"). It is
wrong, however, to constrict the substantive reach of a public
employee's right of free speech in response to such remedial
considerations. See ante, at 677 (government employers who use
reasonable procedures should be free to act "without fear [of]
liability") (emphasis added).
699
about putting the risk of error on an employer in these
circumstances.6
Government agencies are often the site of sharp differences over
a wide range of important public issues. In offices where the First
Amendment commands respect for candid deliberation and individual
opinion, such disagreements are both inevitable and desirable. When
those who work together disagree, reports of speech are often
skewed, and supervisors are apt to misconstrue even accurate
reports. The plurality, observing that managers "can spend only so
much of their time on anyone employment decision," ante, at 680,
adopts a rule that invites discipline, rather than further
discussion, when such disputes arise. That rule is unwise, for
deliberation within the government, like deliberation about it, is
an essential part of our "profound national commitment" to the
freedom of speech. Cf. New York Times, 376 U. S., at 270. A proper
regard for that principle requires that, before firing a public
employee for her speech, management get its facts straight.
I would affirm the judgment of the Court of Appeals.
6 Because there is no dispute that Churchill was fired for the
content of her speech, this case does not involve the problem of
determining whether the public employee would have been terminated
anyway for reasons unrelated to speech. See Mt. Healthy City Ed. of
Ed. v. Doyle,
429 U.
S. 274 (1977).
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