Petitioner
Constable Walter Rankin
Respondent
Ardith McPherson
Petitioner's Claim
That the respondent's dismissal was a reasonable exercise of the government'sinterest in maintaining an efficient workplace.
Chief Lawyer for Petitioner
Billy E. Lee
Chief Lawyer for Respondent
Lloyd N. Cutler
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Thurgood Marshall (writing for the Court), Lewis F. Powell, Jr., John Paul Stevens
Justices Dissenting
William H. Rehnquist, Sandra Day O'Connor, Antonin Scalia, Byron R. White
Place
Washington, D.C.
Date of Decision
24 June 1987
Decision
The Court held that the respondent's speech was on a matter of public concern, and was therefore protected by the First Amendment.
Significance
This case addressed the necessity of striking a balance between a public employer's right to maintain an efficient workplace and a public employee's rightto free speech.
"I hope they get him"
Ardith McPherson was a probationary employee in the office of the constable of Harris County, Texas. Her job was to enter information into a computer. Sheworked in a room without a phone, and she had no contact with the public. Her job title was "deputy constable," but this signified little, as that was the job title of every employee in the constable's office.
On 30 March 1981, McPherson heard on the radio at work that someone had attempted to assassinate President Reagan. She speculated to her boyfriend, another deputy constable, that the would-be assassin was probably an African American, as Reagan's policies were particularly punitive to African Americans. Shethen commented, "If they go for him again, I hope they get him."
Another employee overheard this comment, and reported it to Constable WalterRankin. The constable called McPherson into his office, and asked her if shehad made the comment. She admitted doing so; Rankin fired her on the spot.
McPherson sued Rankin in district court for violating her First and Fourteenth Amendment rights of free speech. The district court used a three-question test developed in Mt. Healthy City School District Board of Education v. Doyle (1977): 1) Is the speech protected? 2) Did it play a substantial partin the decision to fire the employee? 3) If so, was it the deciding factor?In this case, only (1) was in question. The court answered "no," deciding that, on balance, Rankin's interest was more compelling.
McPherson then took her case to the circuit court of appeals. This court found "substantial issues of material fact." It therefore set aside the districtcourt's judgment and sent the case back to be tried again.
The district court ruled for Rankin a second time, saying that McPherson's speech was not protected. McPherson appealed again to the circuit court. This time, the circuit court reversed the district court's judgment and sent the case back to district court for determination of an appropriate remedy. At thispoint, Rankin petitioned the Supreme Court for a writ of certiorari,which was granted.
Pickering and Connick
Two previous cases involving public employees' speech came to bear on this decision: Pickering v. Board of Education (1968) and Connick v. Myers (1983). Pickering involved a public school teacher dismissed forcriticizing the board of education in a letter to the editor. The Court heldthat the teacher's dismissal violated his right to free speech. Justice Marshall, writing for the majority, explained that the Court's job was to "arriveat a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through itsemployees." The legacy of Pickering is a balancing test. The three-step Mt. Healthy test was a later elaboration on the Pickering balance.
The second case, Connick v. Myers, further refined the Pickering testby adding a threshold requirement. The case arose when an assistant districtattorney circulated an inflammatory questionnaire in her office. After beingdismissed for what was called her "mini-insurrection," she sued. The SupremeCourt ruled against her, on the grounds that her speech did not address a matter of public concern. Thus Connick added the "public concern threshold" to the Pickering balance, resulting in the test that the Rankin Court would use.
Comment a Matter of Public Concern
Justice Marshall, writing for the majority, first addressed the threshold question of whether McPherson's comment was "speech on a matter of public concern." The Court found that it was, because an attempt on the president's life clearly concerned the public. The context of the comment, a conversation aboutthe president's policies, also helped its public concern status.
The next question was whether McPherson's statement interfered with the office's ability to provide services efficiently. Marshall did not see any evidence that it had (though Scalia disputed this in his dissent). By Rankin's own testimony, he did not dismiss McPherson in order to maintain an efficient office. He did not ask himself whether or not the comment was disruptive. Rankinfired McPherson because he felt, on the basis of the comment, that she was unsuitable for employment in the constable's office.
Moreover, the specific job of the employee was worth considering. Marshall wrote that because McPherson's duties were so circumscribed, and because she served "no confidential, policymaking, or public contact role," she really hadlimited potential for disrupting the agency or diminishing public trust in the agency. The majority therefore found that, on balance, McPherson's discharge was unwarranted, and ruled for her.
In a concurrence, Justice Powell wondered "how this case has assumed constitutional dimensions and reached the Supreme Court of the United States." To him, this was a relatively minor and clear-cut free speech case. Because McPherson's comment was made privately, the government's interest would have to be unusually great to override her rights in a Pickering balance.
"Simply Violent"
In contrast, Justice Scalia, dissenting, worried that in this case
Scalia departed from the majority on the nature of McPherson's speech. The subject matter alone did not qualify her comment as speech on a matter of public concern, he argued. The statement "I hope they get him" did not relate to self-government, did not constitute part of a public debate, and was not conducive to informed decision making (all criteria from earlier decisions). Her comment was simply violent. Scalia dismissed the conversation preceding the comment as nothing more than the motive for the offending comment.
Even if the speech were on a matter of public concern, though, Scalia still would not consider it protected. The issue was not whether she ought to have been fired. The issue was whether it was permissible to discipline her in someway for her comment. If the speech was protected, then no reprimand would beallowed.
Rankin did have a legitimate interest in disciplining McPherson, Scalia argued, explicitly contradicting the majority's finding that "there is no evidencethat [McPherson's comment] interfered with the efficient functioning of theoffice." As proof, Scalia pointed to a statement from testimony, that the deputy reporting McPherson's comment to Rankin "was very upset because of [it]."
He also took issue with the Court's leniency toward the statements of "nonpolicymaking" employees. (The category of "nonpolicymaking employees" was not new to this case, contrary to Scalia's assertion. It arose first in reference to patronage cases, in Elrod v. Burns 1976, which recommended that patronage dismissals be limited to nonpolicymaking positions. In Rankin, however, the category was first used outside the context of a patronage case.)"Nonpolicymaking employees," Scalia objected, "can hurt working relationships and undermine public confidence in the organization every bit as much as policymaking employees."
Impact
This case expanded the category of "speech on a matter of public concern." Atthe time of the decision, some circuit courts of appeals were using the dissent's standard: speech on a matter of public concern informed citizens and helped them make democratic decisions. Some critics have noted that the Court did not provide a clear analysis of "public concern." If the expanded definition proves difficult to apply, courts may retreat from the Connick threshold requirement, back to the Pickering balancing.
Related Cases
Constable Walter Rankin
Respondent
Ardith McPherson
Petitioner's Claim
That the respondent's dismissal was a reasonable exercise of the government'sinterest in maintaining an efficient workplace.
Chief Lawyer for Petitioner
Billy E. Lee
Chief Lawyer for Respondent
Lloyd N. Cutler
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Thurgood Marshall (writing for the Court), Lewis F. Powell, Jr., John Paul Stevens
Justices Dissenting
William H. Rehnquist, Sandra Day O'Connor, Antonin Scalia, Byron R. White
Place
Washington, D.C.
Date of Decision
24 June 1987
Decision
The Court held that the respondent's speech was on a matter of public concern, and was therefore protected by the First Amendment.
Significance
This case addressed the necessity of striking a balance between a public employer's right to maintain an efficient workplace and a public employee's rightto free speech.
"I hope they get him"
Ardith McPherson was a probationary employee in the office of the constable of Harris County, Texas. Her job was to enter information into a computer. Sheworked in a room without a phone, and she had no contact with the public. Her job title was "deputy constable," but this signified little, as that was the job title of every employee in the constable's office.
On 30 March 1981, McPherson heard on the radio at work that someone had attempted to assassinate President Reagan. She speculated to her boyfriend, another deputy constable, that the would-be assassin was probably an African American, as Reagan's policies were particularly punitive to African Americans. Shethen commented, "If they go for him again, I hope they get him."
Another employee overheard this comment, and reported it to Constable WalterRankin. The constable called McPherson into his office, and asked her if shehad made the comment. She admitted doing so; Rankin fired her on the spot.
McPherson sued Rankin in district court for violating her First and Fourteenth Amendment rights of free speech. The district court used a three-question test developed in Mt. Healthy City School District Board of Education v. Doyle (1977): 1) Is the speech protected? 2) Did it play a substantial partin the decision to fire the employee? 3) If so, was it the deciding factor?In this case, only (1) was in question. The court answered "no," deciding that, on balance, Rankin's interest was more compelling.
McPherson then took her case to the circuit court of appeals. This court found "substantial issues of material fact." It therefore set aside the districtcourt's judgment and sent the case back to be tried again.
The district court ruled for Rankin a second time, saying that McPherson's speech was not protected. McPherson appealed again to the circuit court. This time, the circuit court reversed the district court's judgment and sent the case back to district court for determination of an appropriate remedy. At thispoint, Rankin petitioned the Supreme Court for a writ of certiorari,which was granted.
Pickering and Connick
Two previous cases involving public employees' speech came to bear on this decision: Pickering v. Board of Education (1968) and Connick v. Myers (1983). Pickering involved a public school teacher dismissed forcriticizing the board of education in a letter to the editor. The Court heldthat the teacher's dismissal violated his right to free speech. Justice Marshall, writing for the majority, explained that the Court's job was to "arriveat a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through itsemployees." The legacy of Pickering is a balancing test. The three-step Mt. Healthy test was a later elaboration on the Pickering balance.
The second case, Connick v. Myers, further refined the Pickering testby adding a threshold requirement. The case arose when an assistant districtattorney circulated an inflammatory questionnaire in her office. After beingdismissed for what was called her "mini-insurrection," she sued. The SupremeCourt ruled against her, on the grounds that her speech did not address a matter of public concern. Thus Connick added the "public concern threshold" to the Pickering balance, resulting in the test that the Rankin Court would use.
Comment a Matter of Public Concern
Justice Marshall, writing for the majority, first addressed the threshold question of whether McPherson's comment was "speech on a matter of public concern." The Court found that it was, because an attempt on the president's life clearly concerned the public. The context of the comment, a conversation aboutthe president's policies, also helped its public concern status.
The next question was whether McPherson's statement interfered with the office's ability to provide services efficiently. Marshall did not see any evidence that it had (though Scalia disputed this in his dissent). By Rankin's own testimony, he did not dismiss McPherson in order to maintain an efficient office. He did not ask himself whether or not the comment was disruptive. Rankinfired McPherson because he felt, on the basis of the comment, that she was unsuitable for employment in the constable's office.
Moreover, the specific job of the employee was worth considering. Marshall wrote that because McPherson's duties were so circumscribed, and because she served "no confidential, policymaking, or public contact role," she really hadlimited potential for disrupting the agency or diminishing public trust in the agency. The majority therefore found that, on balance, McPherson's discharge was unwarranted, and ruled for her.
In a concurrence, Justice Powell wondered "how this case has assumed constitutional dimensions and reached the Supreme Court of the United States." To him, this was a relatively minor and clear-cut free speech case. Because McPherson's comment was made privately, the government's interest would have to be unusually great to override her rights in a Pickering balance.
"Simply Violent"
In contrast, Justice Scalia, dissenting, worried that in this case
the Court significantly and irrationally expands the definition of "publicconcern"; 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.
Scalia departed from the majority on the nature of McPherson's speech. The subject matter alone did not qualify her comment as speech on a matter of public concern, he argued. The statement "I hope they get him" did not relate to self-government, did not constitute part of a public debate, and was not conducive to informed decision making (all criteria from earlier decisions). Her comment was simply violent. Scalia dismissed the conversation preceding the comment as nothing more than the motive for the offending comment.
Even if the speech were on a matter of public concern, though, Scalia still would not consider it protected. The issue was not whether she ought to have been fired. The issue was whether it was permissible to discipline her in someway for her comment. If the speech was protected, then no reprimand would beallowed.
Rankin did have a legitimate interest in disciplining McPherson, Scalia argued, explicitly contradicting the majority's finding that "there is no evidencethat [McPherson's comment] interfered with the efficient functioning of theoffice." As proof, Scalia pointed to a statement from testimony, that the deputy reporting McPherson's comment to Rankin "was very upset because of [it]."
He also took issue with the Court's leniency toward the statements of "nonpolicymaking" employees. (The category of "nonpolicymaking employees" was not new to this case, contrary to Scalia's assertion. It arose first in reference to patronage cases, in Elrod v. Burns 1976, which recommended that patronage dismissals be limited to nonpolicymaking positions. In Rankin, however, the category was first used outside the context of a patronage case.)"Nonpolicymaking employees," Scalia objected, "can hurt working relationships and undermine public confidence in the organization every bit as much as policymaking employees."
Impact
This case expanded the category of "speech on a matter of public concern." Atthe time of the decision, some circuit courts of appeals were using the dissent's standard: speech on a matter of public concern informed citizens and helped them make democratic decisions. Some critics have noted that the Court did not provide a clear analysis of "public concern." If the expanded definition proves difficult to apply, courts may retreat from the Connick threshold requirement, back to the Pickering balancing.
Related Cases
- Pickering v. Board of Education, 391 U.S. 563 (1968).
- Elrod v. Burns, 427 U.S. 347 (1976).
- Mt. Healthy City School District Board of Education v. Doyle, 429U.S. 274 (1977).
- Connick v. Myers, 461 U.S. 138 (1983).
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