Rankin v. McPherson/Dissent Scalia

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I agree with the proposition, felicitously put by Constable Rankin's counsel, that no law enforcement agency is required by the First Amendment to permit one of its employees to "ride with the cops and cheer for the robbers." App. 94. The issue in this case is whether Constable Rankin, a law enforcement official, is prohibited by the First Amendment from preventing his employees from saying of the attempted assassination of President Reagan — on the job and within hearing of other employees — "If they go for him again, I hope they get him." The Court, applying the two-prong analysis of Connick v. Myers, 461 U.S. 138 (1983), holds that McPherson's statement was protected by the First Amendment because (1) it "addressed a matter of public concern," and (2) McPherson's interest in making the statement outweighs Rankin's interest in suppressing it. In so doing, the Court significantly and irrationally expands the definition of "public concern"; it also carves out a new and very large class of employees — i.e., those in "nonpolicymaking" positions — who, if today's decision is to be believed, can never be disciplined for statements that fall within the Court's expanded definition. Because I believe the Court's conclusions rest upon a distortion of both the record and the Court's prior decisions, I dissent. [p395]


To appreciate fully why the majority errs in reaching its first conclusion, it is necessary to recall the origins and purposes of Connick's "public concern" requirement. The Court long ago rejected Justice Holmes' approach to the free speech rights of public employees, that "[a policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman," McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517 (1892). We have, however, recognized that the government's power as an employer to make hiring and firing decisions on the basis of what its employees and prospective employees say has a much greater scope than its power to regulate expression by the general public. See, e.g., Pickering v. Board of Education, 391 U.S. 563, 568 (1968).

Specifically, we have held that the First Amendment's protection against adverse personnel decisions extends only to speech on matters of "public concern," Connick, supra, at 147-149, which we have variously described as those matters dealing in some way with "the essence of self-government," Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964), matters as to which "free and open debate is vital to informed decisionmaking by the electorate," Pickering, supra, at 571-572, and matters as to which "‘debate . . . [must] be uninhibited, robust, and wide-open,'" Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 755 (1985) (plurality opinion) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). In short, speech on matters of public concern is that speech which lies "at the heart of the First Amendment's protection," First Nat. Bank v. Bellotti, 435 U.S. 765, 776 (1978). If, but only if, an employee's speech falls within this category, a public employer seeking to abridge or punish it must show that the employee's interest is outweighed by the government's interest, "as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, supra, at 568. [p396]

McPherson fails this threshold requirement. The statement for which she was fired — and the only statement reported to the Constable — was, "If they go for him again, I hope they get him." It is important to bear in mind the District Judge's finding that this was not hyperbole. The Court's opinion not only does not clarify that point, but beclouds it by a footnote observing that the District Judge did not explicitly resolve the conflict in testimony as to whether McPherson told the Constable that she "meant" what she had said. Ante at 382, n. 4. He did not. But he assuredly found that, whether McPherson later said she meant it or not, and whether she even meant it at the time or not, the idea she expressed was not just an exaggerated expression of her disapproval for the President's policies, but a voicing of the hope that, next time, the President would be killed. The District Judge rejected McPherson's argument that her statement was "mere political hyperbole," finding, to the contrary, that it was, "in context," "violent words." 786 F.2d 1233, 1235 (CA5 1986).

This is not," he said, "the situation where one makes an idle threat to kill someone for not picking them [sic] up on time, or not picking up their [sic] clothes. It was more than that.

Ibid. He ruled against McPherson at the conclusion of the second hearing because "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 Court's opinion does not attempt to set aside this finding as to the import of the statement, and there is indeed no basis for doing so, since it is entirely reasonable and supported by the evidence.

Given the meaning of the remark, there is no basis for the Court's suggestion, ante at 386-387, that McPherson's criticisms of the President's policies that immediately preceded the remark can illuminate it in such fashion as to render it constitutionally protected. Those criticisms merely reveal the speaker's motive for expressing the desire that the next attempt on the President's life succeed, in the same way that [p397] a political assassin's remarks to his victim before pulling the trigger might reveal a motive for that crime. The majority's magical transformation of the motive for McPherson's statement into its content is as misguided as viewing a political assassination preceded by a harangue as nothing more than a strong denunciation of the victim's political views.

That McPherson's statement does not constitute speech on a matter of "public concern" is demonstrated by comparing it with statements that have been found to fit that description in prior decisions involving public employees. McPherson's statement is a far cry from the question by the Assistant District Attorney in Connick whether her coworkers "ever [felt] pressured to work in political campaigns," Connick, 461 U.S. at 149; from the letter written by the public school teacher in Pickering criticizing the Board of Education's proposals for financing school construction, Pickering, supra, at 566; from the legislative testimony of a state college teacher in Perry v. Sindermann, 408 U.S. 593, 595 (1972), advocating that a particular college be elevated to 4-year status; from the memorandum given by a teacher to a radio station in Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 282 (1977), dealing with teacher dress and appearance; and from the complaints about school board policies and practices at issue in Givhan v. Western Line Consolidated School Dist., 439 U.S. 410, 413 (1979). See Connick, supra, at 145-146.

McPherson's statement is indeed so different from those that it is only one step removed from statements that we have previously held entitled to no First Amendment protection even in the nonemployment context — including assassination threats against the President (which are illegal under 18 U.S.C. § 871), see Frohwerk v. United States, 249 U.S. 204, 206 (1919); "‘fighting' words," Chaplinsky v. New Hampshire, 315 U.S. 568"]315 U.S. 568, 572 (1942); epithets or personal abuse, 315 U.S. 568, 572 (1942); epithets or personal abuse, Cantwell v. Connecticut, 310 U.S. 296, 309-310 (1940); and advocacy of force or violence, Harisiades v. Shaughnessy, 342 U.S. 580, 591-592 (1952). A statement [p398] lying so near the category of completely unprotected speech cannot fairly be viewed as lying within the "heart" of the First Amendment's protection; it lies within that category of speech that can neither be characterized as speech on matters of public concern nor properly subject to criminal penalties, see Connick, supra, at 147. Once McPherson stopped explicitly criticizing the President's policies and expressed a desire that he be assassinated, she crossed the line.

The Court reaches the opposite conclusion only by distorting the concept of "public concern." It does not explain how a statement expressing approval of a serious and violent crime — assassination of the President — can possibly fall within that category. It simply rehearses the "context" of McPherson's statement, which, as we have already seen, is irrelevant here, and then concludes that, because of that context, and because the statement "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," the statement "plainly dealt with a matter of public concern." Ante at 386. I cannot respond to this progression of reasoning except to say I do not understand it. Surely the Court does not mean to adopt the reasoning of the court below, which was that McPherson's statement was "addressed to a matter of public concern" within the meaning of Connick because the public would obviously be "concerned" about the assassination of the President. That is obviously untenable: the public would be "concerned" about a statement threatening to blow up the local federal building or demanding a $1 million extortion payment, yet that kind of "public concern" does not entitle such a statement to any First Amendment protection at all.


Even if I agreed that McPherson's statement was speech on a matter of "public concern," I would still find it unprotected. It is important to be clear on what the issue is in this part of the case. It is not, as the Court suggests, [p399] whether "Rankin's interest in discharging [McPherson] outweighed her rights under the First Amendment." Ante at 392 (emphasis added). Rather, it is whether his interest in preventing the expression of such statements in his agency outweighed her First Amendment interest in making the statement. We are not deliberating, in other words (or at least should not be), about whether the sanction of dismissal was, as the concurrence puts it, "an . . . intemperat[e] employment decision." It may well have been — and personally I think it was. But we are not sitting as a panel to develop sound principles of proportionality for adverse actions in the state civil service. We are asked to determine whether, given the interests of this law enforcement office, McPherson had a right to say what she did — so that she could not only not be fired for it, but could not be formally reprimanded for it, or even prevented from repeating it endlessly into the future. It boggles the mind to think that she has such a right.

The Constable testified that he "was very concerned that this remark was made." App. 81. Rightly so. As a law enforcement officer, the Constable obviously has a strong interest in preventing statements by any of his employees approving, or expressing a desire for, serious, violent crimes — regardless of whether the statements actually interfere with office operations at the time they are made or demonstrate character traits that make the speaker unsuitable for law enforcement work. In Connick, we upheld the dismissal of an Assistant District Attorney for circulating among her coworkers a questionnaire implicitly criticizing her superiors. Although we held that one of the questions — dealing with pressure in the office to participate in political campaigns — satisfied the "public concern" requirement, we held that the discharge nonetheless did not violate the First Amendment because the questionnaire itself "carrie[d] the clear potential for undermining office relations." Connick, supra, at 152. Statements like McPherson's obviously carry a similar potential in an office devoted to law enforcement. Although that [p400] proposition is, in my view, evident on its face, we have actual evidence of it in the present record: the only reason McPherson's remark was brought to the Constable's attention was that one of his deputies, Captain Levrier, had overheard the remark and, according to the Constable, "was very upset because of [it]." App. 80. [*]

Statements by the Constable's employees to the effect that, "if they go for the President again, I hope they get him" might also, to put it mildly, undermine public confidence in the Constable's office. A public employer has a strong interest in preserving its reputation with the public. See, e.g., Snepp v. United States, 444 U.S. 507, 509, n. 3 (1980); CSC v. Letter Carriers, 413 U.S. 548, 564-565 (1973). We know — from undisputed testimony — that McPherson had or might have had some occasion to deal with the public while carrying out her duties. See App. 73 (answering telephone inquiries); id. at 78-79 (personal assistance).

The Court's sweeping assertion (and apparent holding) that, where an employee "serves no confidential, policymaking, or public contact role, the danger to the agency's successful functioning from that employee's private speech is minimal," ante at 390-391, is simply contrary to reason and experience. Nonpolicymaking employees (the Assistant District Attorney in Connick, for example) can hurt working relationships and undermine public confidence in all organization every bit as much as policymaking employees. I, for one, do not look forward to the new First Amendment world the Court creates, in which nonpolicymaking employees of the Equal Employment Opportunity Commission must [p401] be permitted to make remarks on the job approving of racial discrimination, nonpolicymaking employees of the Selective Service System to advocate noncompliance with the draft laws, and (since it is really quite difficult to contemplate anything more absurd than the present case itself), nonpolicymaking constable's deputies to express approval for the assassination of the President.

In sum, since Constable Rankin's interest in maintaining both an esprit de corps and a public image consistent with his office's law enforcement duties outweighs any interest his employees may have in expressing on the job a desire that the President be killed, even assuming that such an expression addresses a matter of public concern, it is not protected by the First Amendment from suppression. I emphasize once again that that is the issue here — and not, as both the Court's opinion and especially the concurrence seem to assume, whether the means used to effect suppression (viz., firing) were excessive. The First Amendment contains no "narrow tailoring" requirement that speech the government is entitled to suppress must be suppressed by the mildest means possible. If Constable Rankin was entitled (as I think any reasonable person would say he was) to admonish McPherson for saying what she did on the job, within hearing of her coworkers, and to warn her that, if she did it again a formal censure would be placed in her personnel file, then it follows that he is entitled to rule that particular speech out of bounds in that particular work environment — and that is the end of the First Amendment analysis. The "intemperate" manner of the permissible suppression is an issue for another forum, or at least for a more plausibly relevant provision of the Constitution.

Because the statement at issue here did not address a matter of public concern, and because, even if it did, a law enforcement agency has adequate reason not to permit such expression, I would reverse the judgment of the court below.


^  The majority errs in asserting that

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.

Ante at 389. In fact, the statement on which the majority relies for that proposition merely affirms that the Constable did not base his decision "‘on whether the work was interrupted or not.'" See ante at 389, n. 14, quoting Tr. (Jan. 21, 1985), p. 45. That says nothing about his perceptions of the effect of such statements upon office morale and efficiency.