tag:blogger.com,1999:blog-4659708694983666028.post971945193437146155..comments2024-03-07T05:32:33.294-05:00Comments on Wait A Second!: Supreme Court scales back First Amendment's Petition ClauseSecond Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-4659708694983666028.post-4294402137631293152011-06-22T10:40:34.000-04:002011-06-22T10:40:34.000-04:00Although I would reiterate what you stated, that t...Although I would reiterate what you stated, that there was no dissenting opinion in this case, there was a concurring opinion by Justice Scalia disagreeing with the Court's holding requiring a public employee's "petition" to be addressed to a matter of public concern.<br /><br />Justice Scalia examines the history of the Petition Clause and finds no reason to treat the Petition Clause and the Free Speech Clause identically in cases brought by public employees. To the contrary, he finds that the Petition Clause should be treated differently because the history surrounding it is such that it was precisely designed to protect petitions brought to redress personal grievances.<br /><br />He believes the correct test should be whether the "petition" is brought against the government as the petitioner's employer or as the petitioner's sovereign. Accordingly, Justice Scalia would have found against the "petitioner," the plaintiff, on his claim that he was retaliated against as a result of his grievance, because such a grievance is brought against the government as an employer because there is no "citizen analogue." However, he would find retaliation against the plaintiff motivated by the plaintiff's lawsuit under section 1983 impermissible under the Petition Clause because that type of "petition" is brought against the government as sovereign.<br /><br />I sense that I, for one, may be relying on Justice Scalia's concurring opinion in this case in the future in order to argue for a change or modification of the Court's holding at the district court level in order to protect the rights of my clients as public employees who file lawsuits against their government employers.Eric S. Tiltonhttps://www.blogger.com/profile/09955283795037878650noreply@blogger.com