Argument recap: Giving meaning to the Petition and Speech Clauses

During Tuesday’s oral argument in Borough of Duryea v. Guarnieri (09-1476), the Court grappled with the question whether an adverse employment action by the government violates the Petition Clause of the First Amendment when it is taken in retaliation for an employee’s statements on a matter of private concern.  If the argument is any indicator, the Court faces the difficult task of adhering to precedent while giving independent meaning to the Petition and Speech Clauses.

Arguing on behalf of the Borough, Daniel R. Ortiz of the University of Virginia’s Supreme Court Litigation Clinic reiterated that, in keeping with the “principle of parity” expounded in McDonald v. Smith, the threshold “public concern requirement” of Connick v. Myers must apply in public employment cases regardless of whether they arise under the Petition Clause or under the Speech Clause.  Justice Scalia was immediately troubled by the suggestion that the inquiries under both clauses should turn on the content of speech, noting that such a construction would deprive the Petition Clause of independent meaning.  And in response to Mr. Ortiz’s argument that the Court’s First Amendment employment cases have focused on how close an employee’s activity is to the “core” of the First Amendment, Justice Scalia countered that the “core” of the Petition Clause is the act of petitioning—not the content of any particular petition.

Justices Ginsburg, Sotomayor, and Kagan peppered Mr. Ortiz with questions and hypotheticals designed to test the scope of activity that would be protected under the Borough’s view of the Petition Clause.  They similarly pressed Joseph R. Palmore, Assistant to the Solicitor General, who argued on behalf of the United States as an amicus in support of the Borough.  Posing his first question of the day, Justice Kennedy asked Mr. Palmore whether the Petition Clause protects any speech that Connick’s free-speech balancing test would not protect.  Mr. Palmore answered that it does not, but he noted that this may be explained by the fact that Connick’s balancing test already involves inquiry into the “form” of an employee’s grievance—thus permitting judges to take into account whether an employee’s complaint takes the form of a petition.

Eric Schnapper of the University of Washington School of Law defended the Third Circuit’s decision by emphasizing that neither the text, history, nor purpose of the Petition Clause provides any basis to give less protection to petitions involving matters of private concern.  Throughout vigorous questioning, Mr. Schnapper stuck to his position that the appropriate threshold inquiry in Petition Clause cases is whether the plaintiff’s activity was or was not a petition for redress of some grievance.  In response to questions by Chief Justice Roberts and Justices Ginsburg and Alito, Mr. Schnapper made clear that intra-office gripes—complaints directed to the government in its capacity as an employer—are not petitions.  Grievances are petitions only if directed to the government in its capacity as a sovereign.  And, in response to questioning by Justice Kennedy, Mr. Schnapper made clear that not all petitions are necessarily protected.  Rather, the court must still engage in Pickering-type balancing.

Chief Justice Roberts was nevertheless concerned that Mr. Schapper’s proposed test cannot be squared with the Court’s precedents treating the Petition and Speech Clauses as coextensive in the public employment context.  And Justices Ginsburg and Alito expressed concern that Mr. Schnapper’s test would permit aggrieved government employees to circumvent Connick by filing a lawsuit.

Justice Scalia, having already made clear his view that the Petition and Speech Clauses should be read to carry independent meaning, balked at the suggestion that lawsuits constitute petitions.  After all, he explained, the government cannot be sued unless it waives its sovereign immunity.  Justice Ginsburg expressed a similar concern that if lawsuits are accepted as a form of petition, then filing fees might be seen as unconstitutional.  Mr. Schnapper responded to both Justices by drawing a line in the sand: Congress need not waive its sovereign immunity to any particular type of lawsuit, but, having done so, Congress cannot retaliate against government employees who make use of available fora.  Mr. Schnapper clarified, in response to additional questioning by Justice Alito, that the Petition Clause’s history suggests that the Clause primarily protects those who utilize government-created mechanisms for the redress of grievances.