The “Public Concern” Test Limits First Amendment Petition Clause Claims By Public Employees: Borough of Duryea, Pa. v. Guarnieri, 564 U.S. __ (2011).
Recently, the United States Supreme Court handed down a decision in Borough of Duryea, Pa. v. Guarnieri, holding that a public employee who claims government employer retaliation in violation of the First Amendment’s Petition Clause must demonstrate that his petition raises a matter of public concern and is not just a private grievance. The plaintiff, a former police chief, alleged retaliation because he had both filed a grievance and brought a Section 1983 civil rights action against his employer, the defendant municipality. A jury initially awarded compensatory damages to the plaintiff and the Third Circuit affirmed, holding that the Petition Clause may be used in public employee retaliation cases even if the grievance or lawsuit giving rise to the alleged retaliation involves matters of private concern.
The First Amendment, as applied to the states through the Fourteenth Amendment, secures from state action an individual’s rights to “freedom of speech” and to “petition the government for a redress of grievances.” In 1983, the Supreme Court ruled that not all speech by public employees is constitutionally protected; when a public employee speaks out on matters of personal interest, he may nonetheless be subjected to an adverse employment action. In short, retaliation for such speech is not unconstitutional. Connick v. Myers, 461 U.S. 138, 147 (1983). In Guarnieri, the Supreme Court placed the same restriction on the Petition Clause.
In an opinion written by Justice Kennedy, the Supreme Court reversed the Third Circuit. The Supreme Court assumed that grievances and lawsuits are both generally protected by the Petition Clause, but emphasized that its decision relates only to Petition Clause claims made by public employees against government employers. It then went on to rule that, in the public employment setting, the Petition Clause is no broader in scope than the Free Speech Clause which has long included a public concern component. Like speech, the Supreme Court argued, petitions for redress of grievances can interfere with the efficient and effective operation of government; indeed, lawsuits are often more disruptive to the workplace than speech since they call for a government response. Further, judicial second-guessing and intervention impose significant costs on government employers. Where a petition, such as a grievance, raises only a matter of private concern, the public employee is not acting as a citizen but, rather, complaining to government as his employer, not the sovereign. A public employee should accordingly not be protected by the Petition Clause any more than a public employee raising an issue of private concern is protected by the Free Speech Clause under Connick v. Myers.
The Supreme Court maintained that its view of the Petition Clause derives considerable support from the historical record since, in the past, many petitions for government redress addressed matters of public concern. Thus, the Petition Clause should continue to afford considerable protection from retaliation, even if petitioners on matters of private concern only do not share in such protection.
The Court then vacated and remanded the decision for further proceedings, since the public concern issue had not been addressed below.
As a practical matter, the Supreme Court in Guarnieri brought public employee Petition Clause claims in line with both public employee Free Speech Clause claims and public employee Equal Protection Clause claims, which the Supreme Court addressed in Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591 (2008). In all three situations, the Supreme Court pruned back the applicable constitutional right in a way that reflects the Court’s weighty concerns with efficient government and the costs of judicial intervention.
Published in Developments in Municipal Law Fall 2011 Newsletter.