Supreme Court scales back First Amendment's Petition Clause

Justice Kennedy opens up the Supreme Court's Petition Clause ruling with the following language: "Among other rights essential to freedom, the First Amendment protects 'the right of the people ... to petition the Government for redress of grievances.'" Nice language, but it's all downhill from there for public employees.

The case is Borough of Duryea v. Guarnieri, decided on June 20. The Court does not issue many Petition Clause cases. This one asks whether a public employee who files a grievance and then a lawsuit is protected from retaliation under the Petition Clause. After all, in-house grievances and lawsuits constitute "petitions" under the Constitution, right? The answer is, sort of. The petition must address a matter of public concern. Otherwise, management is free to retaliate against the employee, even if he won the grievance and brought suit in federal court.

If you follow public employee free speech cases, some of this language may sound familiar. The Supreme Court said in Connick v. Myers (1983) that public employee speech is protected from retaliation if the employee spoke out on a matter of public concern. This standard ensures that the federal courts are not embroiled in disputes over whether the plaintiff got the right air conditioning or enough paper clips. In contrast, speech alleging corruption or misuse of public money is public concern speech, so long as the speech does not grow out of the plaintiff's official duties. What the Supreme Court does in this case is to fold the free speech clause's "public concern" test into the Petition Clause.

Although the jury found in Guarnieri's favor after the municipality jerked him around for filing a successful grievance and challenging his mistreatment in court, the Supreme Court vacates plaintiff's lucrative jury award. It is true, the Supreme Court has held in the past, that "the right of access to courts for redress of wrongs is an aspect of the First Amendment right to petition the government." But the Petition Clause should not grant employees broader rights than the free speech clause, the Court says. Under either clause, the plaintiff must grieve or speak out on matters of public concern. Since many grievances and lawsuits raise personal matters and not broader issues of concern to the public, there is no solace in the Petition Clause. The practical effect of this case is known to Section 1983 lawyers in the Second Circuit: if the plaintiff files and wins a First Amendment retaliation lawsuit, for example, management may then fire the plaintiff in retaliation for that very lawsuit (unless the lawsuit somehow raised broader issues of public concern beyond the plaintiff's own personal grievance).

The Court's reasoning grants substantial deference to governmental authority, repeatedly reminding us that government offices have important objectives and therefore need to be managed efficiently. "Petitions, no less than speech, can interfere with the efficient and effective operation of government," Justice Kennedy says. Moreover, "when a petition takes the form of a lawsuit against the government employer, it may be particularly disruptive." And, these cases will require the jury to delve into trivial matters about the underlying grievance, i.e., overtime matters, personnel decisions and budget priorities. This raises federalism and separation of powers concerns. The Court worries that different legal standards for free speech and Petition Clause cases "would add to the complexity and expense of compliance with the Constitution."

I thought for sure the Court's liberals would dissent in this case. They did not. The Supreme Court has never had a case like this before, which means the Justices are writing on a clean slate. If the political science considerations that inform Justice Kennedy's decision are not firmly rooted in Supreme Court precedent, and if the Petition Clause is weakened such that even successful lawsuits in federal court do not constitute protected activity, where are the liberals who vigorously dissented the last time the Court scaled back public employee speech claims, in Garcetti v. Ceballos (2006)? I can't say. Maybe Justice Kennedy issued the decision without circulating it to his colleagues!