Rankin v. McPherson/Opinion of the Court

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Rankin v. McPherson by Thurgood Marshall
Opinion of the Court
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Opinion of the Court
Concurring Opinion
Dissenting Opinion

JUSTICE MARSHALL delivered the opinion of the Court.

The issue in this case is whether a clerical employee in a county Constable's office was properly discharged for remarking, [p380] after hearing of an attempt on the life of the President, "If they go for him again, I hope they get him."


On January 12, 1981, respondent Ardith McPherson was appointed a deputy in the office of the Constable of Harris County, Texas. The Constable is an elected official who functions as a law enforcement officer. [1] At the time of her appointment, McPherson, a black woman, was 19 years old and had attended college for a year, studying secretarial science. Her appointment was conditional for a 90-day probationary period.

Although McPherson's title was "deputy constable," this was the case only because all employees of the Constable's office, regardless of job function, were deputy constables. Tr. of Oral Arg. 5. She was not a commissioned peace officer, did not wear a uniform, and was not authorized to make arrests or permitted to carry a gun. [2] McPherson's duties were purely clerical. Her work station was a desk at which there was no telephone, in a room to which the public did not have ready access. Her job was to type data from court papers [p381] into a computer that maintained an automated record of the status of civil process in the county. Her training consisted of two days of instruction in the operation of her computer terminal.

On March 30, 1981, McPherson and some fellow employees heard on an office radio that there had been an attempt to assassinate the President of the United States. Upon hearing that report, McPherson engaged a coworker, Lawrence Jackson, who was apparently her boyfriend, in a brief conversation which, according to McPherson's uncontroverted testimony, went as follows:

Q: What did you say?
A: I said I felt that that would happen sooner or later.
Q: Okay. And what did Lawrence say?
A: Lawrence said, yeah, agreeing with me.
Q: Okay. Now, when you --- after Lawrence spoke, then what was your next comment?
A: Well, we were talking — it's a wonder why they did that. I felt like it would be a black person that did that, because I feel like most of my kind is on welfare and CETA, and they use medicaid, and at the time, I was thinking that's what it was.
. . . But then after I said that, and then Lawrence said, yeah, he's cutting back medicaid and food stamps. And I said, yeah, welfare and CETA. I said, shoot, if they go for him again, I hope they get him. [3]

McPherson's last remark was overheard by another Deputy Constable, who, unbeknownst to McPherson, was in the room at the time. The remark was reported to Constable Rankin, [p382] who summoned McPherson. McPherson readily admitted that she had made the statement, but testified that she told Rankin, upon being asked if she made the statement, "Yes, but I didn't mean anything by it." App. 38. [4] After their discussion, Rankin fired McPherson. [5]

McPherson brought suit in the United States District Court for the Southern District of Texas under 42 U.S.C. § 1983 alleging that petitioner Rankin, in discharging her, had violated her constitutional rights under color of state law. She sought reinstatement, backpay, costs and fees, and other equitable relief. The District Court held a hearing, and then granted summary judgment to Constable Rankin, holding that McPherson's speech had been unprotected, and that her discharge had therefore been proper. Civ.Action No. H-81-1442 (Apr. 15, 1983). [6] The Court of Appeals for the Fifth Circuit vacated and remanded for trial, 736 F.2d 175 (1984), on the ground that substantial issues of material fact regarding the context in which the statement [p383] had been made precluded the entry of summary judgment. Id. at 180.

On remand, the District Court held another hearing and ruled once again, this time from the bench, that the statements were not protected speech. App. 120. Again, the Court of Appeals reversed. 786 F.2d 1233 (1986). It held that McPherson's remark had addressed a matter of public concern, requiring that society's interest in McPherson's freedom of speech be weighed against her employer's interest in maintaining efficiency and discipline in the workplace. Id. at 1236. Performing that balancing, the Court of Appeals concluded that the Government's interest did not outweigh the First Amendment interest in protecting McPherson's speech. Given the nature of McPherson's job and the fact that she was not a law enforcement officer, was not brought by virtue of her job into contact with the public, and did not have access to sensitive information, the Court of Appeals deemed her "duties . . . so utterly ministerial and her potential for undermining the office's mission so trivial" as to forbid her dismissal for expression of her political opinions. Id. at 1239. "However ill-considered Ardith McPherson's opinion was," the Court of Appeals concluded, "it did not make her unfit" for the job she held in Constable Rankin's office. Ibid. The Court of Appeals remanded the case for determination of an appropriate remedy.

We granted certiorari, 479 U.S. 913 (1986), and now affirm.


It is clearly established that a State may not discharge an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech. Perry v. Sindermann, 408 U.S. 593, 597 (1972). Even though McPherson was merely a probationary employee, and even if she could have been discharged for any reason or for no reason at all, she may nonetheless be entitled to reinstatement if she was discharged for exercising her constitutional right to [p384] freedom of expression. See Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 284-285 (1977); Perry v. Sindermann, supra, at 597-598.

The determination whether a public employer has properly discharged an employee for engaging in speech 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.

Pickering v. Board of Education, 391 U.S. 563, 568 (1968); Connick v. Myers, 461 U.S. 138, 140 (1983). This balancing is necessary in order to accommodate the dual role of the public employer as a provider of public services and as a government entity operating under the constraints of the First Amendment. On the one hand, public employers are employers, concerned with the efficient function of their operations; review of every personnel decision made by a public employer could, in the long run, hamper the performance of public functions. On the other hand, "the threat of dismissal from public employment is . . . a potent means of inhibiting speech." Pickering, supra, at 574. Vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees' speech.

II A[edit]

The threshold question in applying this balancing test is whether McPherson's speech may be "fairly characterized as constituting speech on a matter of public concern." Connick, 461 U.S. at 146. [7]

Whether an employee's speech [p385] addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.

Id. at 147-148. The District Court apparently found that McPherson's speech did not address a matter of public concern. [8] The Court of Appeals rejected this conclusion, finding that "the life and death of the President are obviously matters of public concern." 786 F.2d at 1236. Our view of these determinations of the courts [p386] below is limited in this context by our constitutional obligation to assure that the record supports this conclusion:

"[W]e are compelled to examine for ourselves the statements in issue and the circumstances under which they [were] made to see whether or not they . . . are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect."

Connick, supra, at 150, n. 10, quoting Pennekamp v. Florida, 328 U.S. 331, 335 (1946) (footnote omitted). [9]

Considering the statement in context, as Connick requires, discloses that it plainly dealt with a matter of public concern. The statement was made in the course of a conversation addressing the policies of the President's administration. [10] It came on the heels of a news bulletin regarding what is certainly a matter of heightened public attention: an attempt on the life of the President. [11] While a statement [p387] that amounted to a threat to kill the President would not be protected by the First Amendment, the District Court concluded, and we agree, that McPherson's statement did not amount to a threat punishable under 18 U.S.C. § 871(a) or 18 U.S.C. § 2385 or, indeed, that could properly be criminalized at all. See 786 F.2d at 1235 ("A state would . . . face considerable constitutional obstacles if it sought to criminalize the words that were uttered by McPherson on the day the President was shot"); see also Brief for United States as Amicus Curiae 8 ("[W]e do not think that respondent's remark could be criminalized"); cf. Watts v. United States, 394 U.S. 705 (1969) (per curiam). [12] The inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.

[D]ebate on public issues should be uninhibited, robust, and wide-open, and . . . may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964); see also Bond v. Floyd, 385 U.S. 116, 136 (1966):

Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected. [p388]

II B[edit]

Because McPherson's statement addressed a matter of public concern, Pickering next requires that we balance McPherson's interest in making her statement against "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. [13] The State bears a burden of justifying the discharge on legitimate grounds. Connick, 461 U.S. at 150.

In performing the balancing, the statement will not be considered in a vacuum; the manner, time, and place of the employee's expression are relevant, as is the context in which the dispute arose. See id. at 152-153; Givhan v. Western Line Consolidated School Dist., 439 U.S. 410, 415, n. 4 (1979). We have previously recognized as pertinent considerations whether the statement impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise. Pickering, 391 U.S. at 570-573.

These considerations, and indeed the very nature of the balancing test, make apparent that the state interest element of the test focuses on the effective functioning of the public employer's enterprise. Interference with work, personnel relationships, or the speaker's job performance can detract from the public employer's function; avoiding such interference can be a strong state interest. From this perspective, however, petitioners fail to demonstrate a state interest that outweighs McPherson's First Amendment rights. While [p389] McPherson's statement was made at the workplace, there is no evidence that it interfered with the efficient functioning of the office. The Constable was evidently not afraid that McPherson had disturbed or interrupted other employees — he did not inquire to whom respondent had made the remark, and testified that he "was not concerned who she had made it to," Tr. 42. In fact, Constable Rankin testified that the possibility of interference with the functions of the Constable's office had not been a consideration in his discharge of respondent, and that he did not even inquire whether the remark had disrupted the work of the office. [14]

Nor was there any danger that McPherson had discredited the office by making her statement in public. McPherson's speech took place in an area to which there was ordinarily no public access; her remark was evidently made in a private conversation with another employee. There is no suggestion that any member of the general public was present or heard McPherson's statement. Nor is there any evidence that employees other than Jackson who worked in the room even heard the remark. Not only was McPherson's discharge unrelated to the functioning of the office, it was not based on any assessment by the Constable that the remark demonstrated a character trait that made respondent unfit to perform her work. [15] [p390]

While the facts underlying Rankin's discharge of McPherson are, despite extensive proceedings in the District Court, still somewhat unclear, [16] it is undisputed that he fired McPherson based on the content of her speech. Evidently because McPherson had made the statement, and because the Constable believed that she "meant it," he decided that she was not a suitable employee to have in a law enforcement agency. But in weighing the State's interest in discharging an employee based on any claim that the content of a statement made by the employee somehow undermines the mission of the public employer, some attention must be paid to the responsibilities of the employee within the agency. The burden of caution employees bear with respect to the words they speak will vary with the extent of authority and public accountability the employee's role entails. Where, as here, an employee serves no confidential, policymaking, or public [p391] contact role, the danger to the agency's successful functioning from that employee's private speech is minimal. We cannot believe that every employee in Constable Rankin's office, whether computer operator, electrician, or file clerk, is equally required, on pain of discharge, to avoid any statement susceptible of being interpreted by the Constable as an indication that the employee may be unworthy of employment in his law enforcement agency. [17] At some point, such concerns are so removed from the effective functioning of the public employer that they cannot prevail over the free speech rights of the public employee. [18] [p392]

This is such a case. McPherson's employment-related interaction with the Constable was apparently negligible. Her duties were purely clerical, and were limited solely to the civil process function of the Constable's office. There is no indication that she would ever be in a position to further — or indeed to have any involvement with — the minimal law enforcement activity engaged in by the Constable's office. Given the function of the agency, McPherson's position in the office, and the nature of her statement, we are not persuaded that Rankin's interest in discharging her outweighed her rights under the First Amendment.

Because we agree with the Court of Appeals that McPherson's discharge was improper, the judgment of the Court of Appeals is



^ . While the Constable's office is a law enforcement agency, Constable Rankin testified that other law enforcement departments were charged with the day-to-day enforcement of criminal laws in the county, Tr. (Jan. 21, 1985), pp. 11, 27 (hereinafter Tr.), and that more than 80% of the budget of his office was devoted to service of civil process, service of process in juvenile delinquency cases, and execution of mental health warrants. Id. at 15-17. The involvement of his office in criminal cases, he testified, was in large part limited to warrants in bad check cases. Id. at 24 ("Most of our percentage is with civil papers and hot check warrants").

^ . In order to serve as a commissioned peace officer, as the Court of Appeals noted, a deputy would have to undergo a background check, a psychological examination, and over 300 hours of training in law enforcement. 786 F.2d 1233, 1237 (CA5 1986). Constable Rankin testified that, while his office had on occasion been asked to guard various dignitaries visiting Houston, Tr. 24, a deputy who was not a commissioned peace officer would never be assigned to such duty, id. at 30. Nor would such a deputy even be assigned to serve process. Id. at 32.

^ . Tr. 73. In its first order in this case, the District Court found that McPherson's statement had been, "‘I hope if they go for him again, they get him.'" Civ. Action No. H-81-1442 (Apr. 15, 1983). In its second decision, the District Court made no explicit finding as to what was said. McPherson's testimony, as reproduced in the text, is only slightly different from the District Court's version, and the distinction is not significant.

^ . Rankin testified that, when he asked McPherson whether she meant the remark, she replied, "I sure do." App. 38. In neither of its opinions in this case did the District Court make an explicit finding regarding which version of this conflicting testimony it found credible. See also 736 F.2d 175, 177, and n. 3 (CA5 1984).

We note that the question whether McPherson "meant" the statement is ambiguous. Assuming that McPherson told Rankin she "meant it," McPherson might think she had said that she "meant" that she disliked the President and would not mind if he were dead, while Rankin might believe that McPherson "meant" to indicate approval of, or in any event hope for, political assassination. This ambiguity makes evident the need for carefully conducted hearings and precise and complete findings of fact.

^ . McPherson evidently returned to the office the next day seeking an interview with the Constable, but Rankin refused to see her.

^ . Because the District Court entered summary judgment after the first hearing, we must conclude that it did not, in its April 15 ruling, resolve any disputed issues of material fact. We have considered the District Court's findings of fact made after this hearing only to the extent they address what appear to be undisputed factual issues.

^ . Even where a public employee's speech does not touch upon a matter of public concern, that speech is not "totally beyond the protection of the First Amendment," Connick v. Myers, 461 U.S. at 147, but,

absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.


^ . The District Court, after its second hearing in this case, delivered its opinion from the bench and did not explicitly address the elements of the required balancing test. It did, however, state that the case was

not like the Myers case, where Ms. Myers was trying to comment upon the internal affairs of the office, or matters upon public concern. I don't think it is a matter of public concern to approve even more to [sic] the second attempt at assassination.

App. 119.

The dissent accuses us of distorting and beclouding the record, evidently because we have failed to accord adequate deference to the purported "findings" of the District Court. Post at 396. We find the District Court's "findings" from the bench significantly more ambiguous than does the dissent:

Then I suppose we get down to the serious question, what did she "mean." I don't believe she meant nothing, as she said here today, and I don't believe that those words were mere political hyperbole. They were something more than political hyperbole. They expressed such dislike of a high public government official as to be violent words, in context. This is not the situation where one makes an idle threat to kill someone for not picking them up on time, or not picking up their clothes. It was more than that.
It's not like the Myers case, where Ms. Myers was trying to comment upon the internal affairs of the office, or matters upon public concern. I don't think it is a matter of public concern to [sic] approve even more to the second attempt at assassination.

App. 119. The District Court's sole affirmative "finding" here, that McPherson's statement constituted "violent words, in context," is unintelligible in First Amendment terms. Even assuming that the District Court can be viewed to have made any findings of fact on the public concern issue, it is unclear to what extent that issue presents a question of fact at all. In addition, the dissent fails to acknowledge that any factual findings subsumed in the "public concern" determination are subject to constitutional fact review. See also 786 F.2d at 1237.

^ . See also Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984) ("[I]n cases raising First Amendment issues, we have repeatedly held that an appellate court has an obligation to ‘make an independent examination of the whole record' in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression,'" quoting New York Times Co. v. Sullivan, 376 U.S. 254, 284-286 (1964)). The ultimate issue — whether the speech is protected — is a question of law. Connick, supra, at 148, n. 7.

^ . McPherson actually made the statement at issue not once, but twice, and only in the first instance did she make the statement in the context of a discussion of the President's policies. McPherson repeated the statement to Constable Rankin at his request. We do not consider the second statement independently of the first, however. Having been required by the Constable to repeat her statement, McPherson might well have been deemed insubordinate had she refused. A public employer may not divorce a statement made by an employee from its context by requiring the employee to repeat the statement, and use that statement standing alone as the basis for a discharge. Such a tactic could in some cases merely give the employee the choice of being fired for failing to follow orders or for making a statement which, out of context, may not warrant the same level of First Amendment protection it merited when originally made.

^ . The private nature of the statement does not, contrary to the suggestion of the United States, Brief for United States as Amicus Curiae 18, vitiate the status of the statement as addressing a matter of public concern. See Givhan v. Western Line Consolidated School Dist., 439 U.S. 410, 414-416 (1979).

^ . Constable Rankin was evidently unsure of this; he testified that he called the Secret Service to report the incident and suggest that they investigate McPherson. Tr. 44. McPherson testified that the Secret Service did, in fact, come to her home:

Oh, they told me that they thought it was a prank call, but . . . they have to investigate any call that they get.
. . . When they left, they told my mama and me that they were sorry. They said that they knew it was a prank call, they just have to come out and investigate. They said that's the procedure.

Id. at 81-82.

^ . We agree with JUSTICE POWELL that a purely private statement on a matter of public concern will rarely, if ever, justify discharge of a public employee. Post at 393. To the extent petitioners' claim that McPherson's speech rendered her an unsuitable employee for a law enforcement agency implicates a serious state interest and necessitates the application of the balancing element of the Pickering analysis, we proceed to that task.

^ . He testified: "I did not base my action on whether the work was interrupted or not. I based my action on a statement that was made to me direct." Tr. 45.

^ . In response to a question from the bench, counsel at oral argument before this Court expressly denied that this was the motive for the Constable's discharge of McPherson:

QUESTION: . . . [S]uppose when she was called in by the constable and asked whether she had said that, she said, "Yes, I said it."
MR. LEE [counsel for petitioners]: She was, Your Honor. She was called in by the constable.
QUESTION: I know. Now, suppose she had said, "Yeah, I said it, but, you know, I didn't really mean anything by it."
MR. LEE: Yes, sir.
QUESTION: Do we know whether she would have been fired? I mean, conceivably you might fire her anyway. I mean, he might have said, "Well, you know, you shouldn't talk like that, whether you mean it or not. I don't want that kind of talk in my law enforcement agency, whether you mean it or not. It shows poor judgment, and you're fired."
Was that the basis for his dismissal?
MR. LEE: Your Honor, I would say not, based upon two trials that we have been through in the District Court.

Tr. of Oral Arg. 10-11.

^ . Rankin's assertion, as evidently credited by the District Court after its first hearing, was that he discharged respondent because her statement undermined his "confidence" in her. App. 42-43. After its second hearing, the District Court did not state clearly what it concluded the motive for respondent's discharge to be. Petitioners' counsel, at oral argument, suggested that McPherson was discharged because she hoped that the President would be assassinated. Tr. of Oral Arg. 11-13. The Court of Appeals similarly classified the District Court's finding. See 786 F.2d at 1237 ("For the purpose of applying the Pickering/Connick balancing test, we accept the district court's conclusion that McPherson actually hoped that the President would be assassinated"). We are not persuaded that the Court of Appeals has properly divined the meaning of the District Court's findings, but, even accepting the Court of Appeals' view, we agree with the Court of Appeals that the speech was protected.

^ . We therefore reject the notion, expressed by petitioners' counsel at oral argument, that the fact that an employee was deputized meant, regardless of that employee's job responsibility, that the Constable could discharge the employee for any expression inconsistent with the goals of a law enforcement agency.

MR. LEE [counsel for petitioners]: The man who sweeps the floor in the constable's office is not employed by the constable. He's employed by commissioners' court, who takes care of all of the courthouses.

Tr. of Oral Arg. 6.

QUESTION: I guess it's a lucky thing then that the constable is not himself responsible for keeping the courthouse clean, which could have been the case. I mean, you —
MR. LEE: Which could have been the case, yes, sir. That is right, because he would then —
QUESTION: Then your argument would indeed extend to the man who swept the floor; right?
  • * * *
QUESTION: And you would be making the same argument here —
MR. LEE: Yes, sir.
QUESTION: — because that man had the name of deputy?
MR. LEE: That's right.

Id. at 8.

^ . This is not to say that clerical employees are insulated from discharge where their speech, taking the acknowledged factors into account, truly injures the public interest in the effective functioning of the public employer. Cf. McMullen v. Carson, 754 F.2d 936 (CA11 1985) (clerical employee in sheriff's office properly discharged for stating on television news that he was an employee for the sheriff's office and a recruiter for the Ku Klux Klan).