PICKERING v. BOARD OF EDUCATION

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Argument of John Ligtenberg

Chief Justice Earl Warren: 510, Marvin L. Pickering, appellant, versus Board of Education of Township High School District 205, Will County Illinois.

Mr. Ligtenberg, you may proceed with your argument.

Mr. John Ligtenberg: Mr. Chief Justice and may it please the Court.

This case has considerable similarity to the one that you heard yesterday afternoon from Alaska.

Marvin Pickering was dismissed by the Board of Education of Lockport, Illinois because he wrote a letter to the -- which is published in the local paper in which he criticized the Board of Education.

All other reasons for his dismissal are excluded in this case.

The only question therefore before you is precisely a First Amendment question.

The public high school Board of Lockport, Illinois had over a period of years faced the usual growing problems that had been common in the last numbers of years in that prior of the country and elsewhere.

In 1962, it had presented a bond issue to the purpose of erecting a public high school, a new public high school.

That bond issue lost.

Same -- later that same year with some revisions and plans and with other arguments in favor of the new school building, a larger bond issue for five and half million dollars was presented to the voters and that bond issue passed.

The situation then continued or until about 1964 when the Board decided that it needed more money and a higher tax rate to run the school -- the high schools of that district and it presented a tax rate referendum to the Board of Education -- to the people of that community some time in the Spring.

That tax referendum lost.

Later in -- another one was offered, another tax rate referendum was offered in September.

And on September 22nd or 19th rather, that referendum was voted upon and it lost.

Marvin Pickering was a teacher in that high school.

He is a science teacher.

He had been attending meetings of the Board of Education for the last two years until he was not only familiar with their problems but also knew the reasons why they were having trouble getting their message across to the public.

Therefore, he wrote a letter which he submitted to the Editor of the Lockport Herald on about the 22nd of September just three days after the election.

And that letter at his request was published in the Lockport Herald on -- in the issue of September 24.

On October 8, just two weeks later, the Board of Education voted to dismiss him.

Now, I perhaps want to spend a little time going into some of the allegations of that letter a little bit later.

Chief Justice Earl Warren: May I ask, was he given a hearing of any kind, a trial or?

Mr. John Ligtenberg: Yes he was Your Honor.

He was a tenure teacher under the laws of Illinois, have served with probationary period and under that he was entitled to notice and a hearing.

He did get notice, and he received the hearing and it was after that the Board voted to dismiss him.

That was subsequently taken to the Circuit Court of that county under the provisions of the Illinois Administrative Review Act and thus again finally thus -- as to the Supreme Court of Illinois and then finally here of course.

Of course we are here because he lost at each of those three stages.

The charges against him on page 10 -- of the -- page -- Volume 1 of the appendix and while I don't want to read them all, I just want to advert to some of the high spots in these charges.

That -- it starts on page nine.

It says he wrote a letter which -- and that in this letter without justification he questioned and impugned the motives, honesty, integrity, truthfulness, responsibility and competence of this Board of Education and the school administrators.

And then continued a little further, he says he is seriously involved by this letter and damaged the professional reputations of the administrators and the Board and the reputations of the schools of this district and are and will be highly disruptive to the discipline of the teachers and the moral and harmony among the teachers, administrators, Board of Education and residents of this district and that these comments will tend to ferment controversy.

Please note Your Honors that nothing is said here about its disrupting the educational process in the school.

Nothing was said here that there was anything in this charge -- there's nothing in these charges that said this is going to reach down and harm the children who are attending this school.

It mentions citizens, administrators, Board members, and that's all.

Now --

Justice Hugo L. Black: Would that have changed your case?

Mr. John Ligtenberg: I don't think so Your Honor.

No, I'm only --

Justice Hugo L. Black: What's the materiality?

Mr. John Ligtenberg: I don't think it actually changes it.

I just -- they just -- I think that it's important in that one sense because later on as I saw the case at that time and I tried it there, if they had been able to prove that there had been any real incitement to riot, or something like that among the students maybe that would have in my judgment at that time affected it.

But nothing at that time was charged and I might add some of the questions that asked now that not one word of evidence was ever offered to the affect that any disruption of any kind ever took place either in the school itself or among the faculty or among the Board members.

I assume the Board members got disrupted though by -- they wouldn't have made the charges.

But there was absolutely no evidence of any kind.

It was simply assumed that the speaking or writing of these words whether the thing that caused the damage to such an extent that he had to be fired.

Chief Justice Earl Warren: There are no evidence that their reputations have been damaged?

Mr. John Ligtenberg: No, they said they were damaged, but there is no evidence whatever on that score.

Chief Justice Earl Warren: They said that in the order.

Mr. John Ligtenberg: I think they -- as I remember the order it was said there, it did and would say if -- that if the order sort of recited these charges that I just said.

So that's the extent of it Your Honor.

Justice William J. Brennan: Is the Board an elected or appointed?

Mr. John Ligtenberg: The Board is an elective Board.

There are seven members of the Board.

They're elected every -- some are elected every year.

So it runs through in three years.

Justice William J. Brennan: (Inaudible)

Mr. John Ligtenberg: Yes, terms of three years and -- but they run alternately.

Now, in my view, in our view of this case --

Chief Justice Earl Warren: Before we get to that, may I ask you if he demanded the hearing before the Board that's mentioned in this order that you just read?

Mr. John Ligtenberg: Yes, the Illinois school code provides that when charges are made against a teacher, those charges are heard by the employing Board.

The Board that heard these charges is precisely the Board against whom he complained in his letter and who felt that they were damaged by his letter.

Chief Justice Earl Warren: That -- well, did he demand, did he demand a hearing, it says further take notice that if you desire a hearing upon such charges --

Mr. John Ligtenberg: Oh!

Chief Justice Earl Warren: -- caused and reason.

Mr. John Ligtenberg: Yes, he followed the statutory course which is to demand a hearing in 10 years or in 10 days.

The hearing was demanded, it was granted, a hearing was held.

Chief Justice Earl Warren: Yes.

Mr. John Ligtenberg: As to that part, there is no question of the conformity to the procedural rules applied to this case.

Justice William J. Brennan: And was that hearing transcribed?

Mr. John Ligtenberg: Yes Your Honor, and it's --

Justice William J. Brennan: It's what the -- all this (Inaudible)

Mr. John Ligtenberg: There -- it's a -- abstract in the appendix and I think the record is here in this --under the Administrative Review Act of Illinois, yes, its on – it begins on page 37 Your Honor or 39.

Justice Hugo L. Black: Of the appendix?

Mr. John Ligtenberg: Of the abstract or appendix Volume 1, that's where it begins.

The Board at this hearing presented proof of publication which we admitted.

They attempt -- they prove that this paper had some 2,900 subscribers.

I -- the position that I didn't care for millions of subscribers it was the same principle involved as far as I was concerned.

The question I think that I would like to present is whether there is any limit prima facie to the First Amendment rights of public employees.

In our brief, we have taken position that public employees demands at least with all the First Amendment, the Freedom of Speech Rights that any other person has by taking the job with some agency of the government, state, federal or local.

That person does not thereby, ipso facto lose some rights.

We think that applies to school teachers and I think you will immediately see that the issues in this case are raised so much to those that -- or before you yesterday.

We feel that the -- if we take the analogy of the loyalty oath cases that we have come -- we have found here that finally you apply the same test in loyalty oath cases of public employees as you do in some of the cases such as for instance New York Times.

In New York Times there was a question of truth.

You laid down a rule which I'm certain we need not to spend much time talking about.

We think that within that rule if applied here, there was the issue of certain statements and this letter as to whether they're true or false.

The Board claimed that most of them were false.

Actually --

Justice Abe Fortas: (Inaudible) were there findings made?

Mr. John Ligtenberg: Well, the finding of the Board of Education was that they were all -- all their charges were sustained.

In the -- and then the specifications which were added later in the Circuit Court, they specified some I think 16 items in the letter that they said were false.

Justice Hugo L. Black: Do I understand you to say that the School Board held all of the charges were true?

Mr. John Ligtenberg: Well, they held the charges are true and they said that letters in this -- the statements in the letter are false.

Justice Hugo L. Black: The statements in the letter were false?

Mr. John Ligtenberg: That's right, they have isolated I think some 16 statements that they said were false.

Now, that was substantially upheld by the Circuit Court of Will County.

It was substantially upheld also --

Justice William J. Brennan: Was that a hearing de novo or was that just a --

Mr. John Ligtenberg: No Your Honor, it is not a hearing de novo.

Justice William J. Brennan: Treated as if but were just a review of an administrative agency determination?

Mr. John Ligtenberg: It goes up on the record, yes, on the transcript and on the documents.

Justice William J. Brennan: But there's no hearing de novo on the record.

Mr. John Ligtenberg: No, there is not Your Honor, that -- the statute --

Justice William J. Brennan: Now did the -- the Supreme Court of Illinois file an opinion in this case?

Mr. John Ligtenberg: Yes Your Honor, there were two opinions filed.

The -- and that is -- those are also of course in the volume one of the appendix --

Justice William J. Brennan: Don't bother, I can find these?

Mr. John Ligtenberg: They're on page 134, the first one is, and then the next one is just following.

The Supreme Court of Illinois upheld substantially that all these charges in their opinion had been substantially proved to be false.

That is the charge are proved to be true and the statements on the letter had been proved to be false possibly, with one exception.

The dissenting opinion filed in the Illinois Supreme Court took the opposite suit -- view.

There were five justices sitting when this case was heard in the Supreme Court of Illinois.

There were two vacancies at that particular time.

And two of those justices dissented and found that there -- in their opinion, on the testimony of Mr. Pickering at the trial, he had shown that he had reasonable grounds for believing all the statements that he made.

So that again, if it's question of truth or falsity and the effect falsity, we come back I think to very much a situation like there was in the New York Times case where he had -- for instance I'll take maybe the most controversial one.

He said that the Board spent some $200,000.00 a year on athletics.

In order to make up that total at the hearing he had scrounge and he had found some $170,000.00 of athletic expenses then he listed at the hearing maybe a half a dozen or more areas of expenditures that he hadn't been able to locate yet and didn't know how much they were.

It was pointed out by the Board, at its side of the case that about $111,000.00 of that was capital expenditure and perhaps not be -- would not be a reoccurring and yet he came as we thought and as apparently the dissenting justices of the Supreme Court thought close enough to proving his round figure.

There were other similar charges, money spent.

Mr. Pickering took -- he seems to follow the idea that he knew what was wrong.

He knew -- in his judgment he had a diagnosis of why the Board was losing these bond issues and tax referendum, particularly the tax referendum.

Incidentally one charge they made that he in his letter had called the last two elections, bond issue elections whereas there was tax referendum election and they call that a lie.

Of course it was certainly a mistake, but it was certainly not one that bar any relation to -- what in the Alaska case, and what's called morality.

These are the types of things that they struck at.

He -- I think his letter had some asperity about it.

There was a sharpness of tone about it.

That -- it seems to me that under the cases that we have had here, this is not something that destroys their value, the right of writing in a letter.

We have said so many times and we had read many times in the decisions of this Court that --

Justice William J. Brennan: You probably read some dissenting opinions have read like that --

Mr. John Ligtenberg: Well, I have read I think both in that regard.[Attempt to Laughter]

So that of course we at in Illinois we tend to read the both, but sometimes we rely to great extent on the majority opinions.

I confess to the ills of most attorneys in that respect.

We read the ones we like.

I think however --

Justice Abe Fortas: I know, like judges.[Laughter]

Mr. John Ligtenberg: Oh, well the Illinois --

Chief Justice Earl Warren: Did the Supreme Court of Illinois applied the Times test?

Mr. John Ligtenberg: The Supreme Court of Illinois recited at considerable length the evidence about the truth and falsity of the letter and it said in a couple of sentences or maybe even on one sentence, New York Times versus Sullivan and Garrison versus Louisiana don't apply, just like that.

I don't think I have exaggerated that at all when I put it that way.

Justice Abe Fortas: That is because of the employer-employee relationship, isn't that right?

Because the court said that they apply it because of the employer-employee relationship.

Mr. John Ligtenberg: Yes, the court said in its opinion that in effect at least that when you enter into government employ, you give up so many of your rights.

I think that for a court to adhere to the rule that if you work for Ford you buy Fords.

If you wanted to take that attitude that was about the way it said.

You have to -- a school is entitled to -- is supposed to be a person who yields up a lot of his right.

He has to walk a pretty straight line according to the Illinois Supreme Court opinion.

The court said that this phrase which as it appears in the Illinois law, the -- that among other things that the Board may dismiss and remove a teacher when the best interests of the schools require it is a phrase under which the -- as it has been said in a number of Illinois cases, the best interest of the school is the guiding star of the Board of Education.

Now, sometimes the opinions or most of the time, the opinions have semantically giving us some value to that by showing some causes that could be said to get warrant to the use of that phrase in that case.

But the -- certainly the opinion of the Illinois Supreme Court was based pretty sharply on that very thing that the guiding star of the Board of the -- Board of Education is the best interest of the schools.

And if -- in its opinion the best interest of the schools are violated by something a teacher has done, then here is the catch all phrase like you had in Alaska or not an Alaska case, maybe not quite a as the terminology, but it's the same idea.

It catches everything.

Justice Hugo L. Black: Who's opinion?

Mr. John Ligtenberg: In the opinion of the Board of Education.

If in the opinion of the Board of Education, the best interest of a school require it, then the teacher may be dismissed.

So that --

Justice Hugo L. Black: You did not mean that --

Mr. John Ligtenberg: I beg your pardon.

Justice Hugo L. Black: You did not mean it what I thought you first to imply that if in the best -- and this opinion of the court?

Mr. John Ligtenberg: No, I'm talking -- I said Board, I think throughout that -- anyway, I mean Board, the Board of Education under the statute may dismiss a teacher when in its opinion the best interest of the school require it.

I'm paraphrasing it at this point.

So that --

Justice William J. Brennan: Well, I want to be clear.

This judicial review then is really limited to whether the Board had something what, rational in the way of it's --

Mr. John Ligtenberg: Yes --

Justice William J. Brennan: -- (Voice Overlap) is that it?

Mr. John Ligtenberg: The statute is on page 4, actually of the brief and it says what the scope of the review is and it says that there's no additional evidence to be presented, the tenure law itself in providing for hearings as the -- a court reporter must be present, that a transcript must be made.

The rule always says that -- also says that the court will review the evidence for the purpose of determining whether it was substantial evidence.

In other words, the way the substantial evidence rule in the manifest --

Justice William J. Brennan: Well, then its ordinary judicial review of an administrative nature?

Mr. John Ligtenberg: Precisely, I think it (Voice Overlap) --

Justice William J. Brennan: This is (Voice Overlap) the marriage is not a cause for removal, I see that's expressly stated?

Mr. John Ligtenberg: Pardon?

Justice William J. Brennan: Marriage is not of course --

Mr. John Ligtenberg: Oh, yes.

Well, Your Honor I have been counseling teacher's cases for many years and I've taught that for a number years, before it was put in the statute and save me any further litigation.

I think I'd like to reserve a few moments for -- to reply.

Chief Justice Earl Warren: You may, you may Mr. Ligtenberg.

Mr. Cirricione?

Argument of John F. Cirricione

Mr. John F. Cirricione: Mr. Chief Justice, honorable members of the Court.

After the two tax rate referendums failed, Mr. Pickering came up with a rather comprehensive indictment not only of the school Board but also that the superintendent.

Some of the teachers who were assisting in attempting to get the message to the community by writing letters to the same paper and in this indictment they also attacked the school's athletic program and -- per se not just the handling of it by the Board, but the whole idea of having athletics within the program.

Justice William J. Brennan: Did you say some teachers have written to the --

Mr. John F. Cirricione: Yes --

Justice William J. Brennan: -- to the same paper in support of the program?

Mr. John F. Cirricione: Not of the athletic program, but in support of the tax rate increase.

Justice William J. Brennan: Was anything done to them?

Mr. John F. Cirricione: No.

No, his --

Justice William J. Brennan: Only this fellow who's opposed it?

Mr. John F. Cirricione: Right.

The indictment that Mr. Pickering was making of the Board is that they were not able to get the message to the tax payers clearly enough to pass the tax rate issues.

That in prior dealings with the public they didn't get the message as to the building bond programs so that when they came to this issues, the public had gathered distrust and then in formulating his premises to support his argument that the Board no longer had the trust of the public.

He used rather illogical approaches.

Now he categorized the initial failure of the building program as a breach of promise by the Board of Education because in the initial program, the Board represented that there would be no frills.

The frills that he had referenced to were a football field, athletic field, auditorium and swimming pools.

Now the initial program that the Board had proposed to the public was a tutor school, a two-year school plan.

When the voters voted this down, the entire plan was scrapped and a new program developed six or eight months later that was presented to the voters.

This program provided for a 4-year school on side of the -- the district is divided by waterways, Chicago Sanitary and Ship Canal.

And the Board proposed to construct this west side high school as a four-year school because a considerable amount of the population was located west of this waterway.

A second school was proposed under this bond issue to be located on the east side of the river, but this was to be a two-year school so in constructing the west side school, the Board did put in its plans and it was publicized that an auditorium and an athletic field would be built but no swimming pool.

Now Mr. Pickering took all of this maze of activity spreading over the two-year period writing his letters and says that the Board was guilty of a breach of promise to the taxpayer.

Going on and using language that would tend to ridicule and make sarcasm of the Board, he says, “the children should have these things,”but promises are promises Your Honor.

Whose fault is this?

Now, this is the tenor of the letter, it goes on --

Justice Abe Fortas: Well, does it makes any difference -- does it make any difference whether he was right or wrong?

Mr. John F. Cirricione: In what regard Your Honor?

Justice Abe Fortas: In terms of the First Amendment problem that's before us?

Mr. John F. Cirricione: Well, if you're going to apply the Sun Time -- New York Times rule, I suppose that the Board would have to show that the falsehoods were made in bad faith.

The Supreme Court of Illinois took the position that we're not going to apply the New York Times rule.

We're going to apply a standard that is a little less broad, I guess you might say and restrict the teachers to a standard that if they're called upon to justify their statements, they must have a reasonable basis in fact and in reporting these facts, they must be reasonably accurate.

The word reasonably appears throughout the Illinois opinion.

Justice Abe Fortas: Are you defending that standard?

Mr. John F. Cirricione: I believe this is the only standard (Voice Overlap) Your Honor.

Justice Abe Fortas: So what's your -- what you're presenting to us is a proposition that -- if Mr. Pickering was reasonably inaccurate, then his dismissal was justified?

Mr. John F. Cirricione: Oh!

Yes.

I think the effect on the public is the same.

If it's a negligent mistake or a honest mistake or even a bad faith mistake, the misrepresentations to the public has the same effect.

It would further defeat our proposals to pass these tax rate increases.

Now, I might say here that all of us here today --

Justice Abe Fortas: Well, suppose he had made this not in the form a written communication, let's suppose he had made a speech.

Mr. John F. Cirricione: Before whom Your Honor?

Justice Abe Fortas: Well, just a speech outside to more than 10 people, let's say --

Mr. John F. Cirricione: That -- are teachers?

Because I think a speech to the teachers may have a little higher privilege than making a speech to the general public.

Justice Abe Fortas: Where do you get that?

Mr. John F. Cirricione: I beg your pardon.

Justice Abe Fortas: Where do you get that, a little higher privilege?

Mr. John F. Cirricione: I think there's some of that effect, the local law.

Justice Abe Fortas: Is it cited in your brief?

Mr. John F. Cirricione: No, no Your Honor.

Justice Abe Fortas: You mean there is a local law saying that there is some kind of privilege if you address teachers -- if a teacher addresses other teachers?

Mr. John F. Cirricione: That -- the area of the debate in the freedom of speech is broader, yes sir.

Justice Abe Fortas: There's a local law, you don't really mean that, do you?

Mr. John F. Cirricione: I wish I could give you the citation Your Honor.

This is not really involved in the case, but I believe this to be the law and I think it's fair.

Justice Abe Fortas: Then I suppose -- suppose he made a speech at a Patent-Teachers Association meeting?

Mr. John F. Cirricione: Then I think I would --

Justice Abe Fortas: Suppose he was wrong, he had been carefully investigated -- wrong.

Mr. John F. Cirricione: I would think that the standard established by the Illinois Court is the applicable standard.

Justice Abe Fortas: Even though, a speech at a Parent-Teachers meeting?

Mr. John F. Cirricione: Yes.

I'll tell you why Your Honor.

I don't think the employer has to be put into a position where they're going to have to hire people, public relations people, incur expense to correct the mistakes of a college trained, experienced teacher, it shouldn't have to be.

Justice Abe Fortas: Would you apply that, suppose some government employee, some employee of the state made criticisms of a Governor, an elected Governor of a state and they were wrong --

Mr. John F. Cirricione: Well --

Justice Abe Fortas: Would you say that that's ground for a dismissal constitutionally, that is all we're talking about?

Mr. John F. Cirricione: Again, you have to know the nature of the relationship of employee and employer.

I think the higher in the -- hierarchy of government, the more loyalty is owed to the interest of the employer.

The President of the United States undoubtedly can remove any member of his cabinet, even if there were a tenure statute.

If he felt that the loyalties of this member were detrimental to his interest.

This is the common law of the employer-employee relationship.

Justice Abe Fortas: Suppose a teacher, I just want you to address yourself to the specific questions if you will, suppose a teacher published in a paper, an open letter, send out an open letter to the public in Illinois in which he criticized the Governor for the Governor's alleged action or inaction with respect to the public school system.

Mr. John F. Cirricione: A teacher criticizing the Governor?

Justice Abe Fortas: Yes.

Mr. John F. Cirricione: I think he has a privilege that is equal to the general pubic to do that.

The Governor does not hire the teacher.

The Board of Education of District 205 does in this case.

Justice Abe Fortas: You, in other words, you think that this depends on the approximate.

This is a privilege that relates to the relationship between the employee and his immediate employer.

Mr. John F. Cirricione: Yes, yes and I think the federal civil service system adopts this position.

And in -- as in -- as recent as 1965, this Court has denied certiorari in the Cambridge case and in 1962 the Houston case.

Justice Abe Fortas: Well I'm not sure that I would agree with that.

Mr. John F. Cirricione: I -- that's the way I interpret it.

Chief Justice Earl Warren: (Voice Overlap) I understood you to say that there was a difference in the standard of a teacher making a speech and writing a letter of this kind?

Mr. John F. Cirricione: Yes, I think the publication reaches far more people within the district.

Chief Justice Earl Warren: Yes, let me ask you this.

Suppose this petitioner made a speech before a citizen group and said the identical things that are in this letter and then the newspaper reporting that meeting published the entire -- his entire argument.

Would he be protected?

Mr. John F. Cirricione: I think under the Illinois standard he probably would lose his job and a -- even better Your Honor if the --

Chief Justice Earl Warren: I thought you said there was a local law or something that --

Mr. John F. Cirricione: You say, before teachers or parents?

Chief Justice Earl Warren: I beg your pardon?

Mr. John F. Cirricione: I thought you said before parents, Your Honor.

Chief Justice Earl Warren: No, I said before citizens and any group of citizens.

Mr. John F. Cirricione: Alright.

Chief Justice Earl Warren: Would you say that that was privileged?

Mr. John F. Cirricione: No.

Chief Justice Earl Warren: Well, what privilege does he have in making speeches then that he wouldn't have in writing a letter of this kind to the press?

Mr. John F. Cirricione: Number one, I think in debate many things are said hastily without research.

But if preparing a written document to be submitted to a newspaper for publication, the author of that letter has ample time to research his facts and determine the correctness of those facts.

As a matter of fact, in this case the School Board had a policy which requested the teachers, it wasn't a mandatory direction, which required her, not required but directed the teachers to submit their publications that were to be placed in a newspaper to the building coordinator prior to publication for the purposes of accuracy.

Chief Justice Earl Warren: You mean any teacher, any teacher reporting anything in the papers are required to submit it to the -- this officer that you speak of?

Mr. John F. Cirricione: I don't believe the wording is mandatory Your Honor I think it's more of a direction.

Chief Justice Earl Warren: What does it say?

What is it say?

Mr. John F. Cirricione: It says that before releasing a publication, a teacher should submit in triplicate the proposed publication to the building coordinator of the school district for the purposes of accuracy.

That's the substance of it.

Chief Justice Earl Warren: Well --

Mr. John F. Cirricione: That the word is should and I don't think it would be a --

Chief Justice Earl Warren: Does the fact that he doesn't do it is that --

Mr. John F. Cirricione: Not a basis for discharge.

Chief Justice Earl Warren: (Voice overlap) that he should be fired?

Mr. John F. Cirricione: No, no, we're not contending that.

Argument of Unk

Unk: What --

Rebuttal of John F. Cirricione

Mr. John F. Cirricione: I mean, it just -- it -- I think it indicates the importance in an -- in a passing a bond issue or a tax referendum of getting the facts clearly before the public.

We have great difficulty passing these bond issues.

I believe the Illinois system in requiring us to do, this is so archaic that maybe that's the statute that ought to be attacked here today instead of the dismissal statute.

You're asking people in -- today to vote themselves to raise in taxes.

This is most difficult and it's important in getting the message to the public that the facts and details that you are setting out to them is accurate.

Chief Justice Earl Warren: Is there any evidence in the record to indicate that this petitioner acted in bad faith?

Mr. John F. Cirricione: I -- not per se Your Honor.

You have to take into consideration one, that he is a college trained man.

Number two, that he has been with the district for five years, number three that he attended most of the meetings for the two years last -- passed before writing his letter, that the books and records of the school district are available.

Then for him to sit down and write the letter in the manner in which it was written, just cannot be justified.

I just feel there's no excuse for writing this sort of a letter and expect to escape the consequences under this -- the New York Times rule because of the employer-employee relationship.

The Illinois Court, majority felt this way even Justice Shafer in his dissent had some severe criticism of the judgment, lack of good judgment, poor taste in which the letter was written, but he felt that the New York Times rule should be applied.

He also felt that because of the vagueness of the standard of best interest of schools that at least in reference to First Amendment rights, the dismissal statute should be more specific.

Now he cited no cases.

Actually the point wasn't -- it was not raised in the complaint for administrative review, it was argued in the brief and argument in the Illinois Court and of course it's reasserted here before this Court.

We feel that while it's coached in broad language the relationship between teacher and the Board and the various members of the public could lead to so many different factual situations that of a necessity, it must be coached in broad language.

Justice Byron R. White: Well wouldn't your argument --

Mr. John F. Cirricione: The Congress recognizes this --

Justice Byron R. White: Wouldn't your argument really -- shouldn't it really reach the situation where the teacher publishes information which is true in terms of its consequence on other teachers disrupting the school if it does -- or in terms of any breach of loyalty.

It seems to me that the true state witness is as vulnerable -- is it -- is as vulnerable as the false one in terms of --

Mr. John F. Cirricione: Well, except that --

Justice Byron R. White: -- loosing his job.

Mr. John F. Cirricione: Yes.

Justice Byron R. White: What -- why couldn't he be fired for publishing a true statement?

Mr. John F. Cirricione: Because, I think the courts would hold that a truthful statement is justified.

Justice Byron R. White: (Voice Overlap), is protected speech.

Mr. John F. Cirricione: Yes.

Not -- I would say justified.

If he makes a charge, there's a basis in fact, a reasonable basis in fact --

Justice Byron R. White: I take it that you --

Mr. John F. Cirricione: -- to support the charge.

Justice Byron R. White: -- would say that there's no interest -- that there's not a sufficient interest in the state in terms of maintaining order and whatnot or whatever, however you want to put it.

There is not sufficient interest in the state in controlling the speech of its public employees --

Mr. John F. Cirricione: We don't --

Justice Byron R. White: -- to allow them to be fired when they make a truthful statement about what the superintendent is doing that the teachers don't like.

Mr. John F. Cirricione: Truth plus justification Your Honor.

I -- sometimes you could make a truthful statement that could be more damaging than telling it, not lie.

Justice Byron R. White: Of course, so what is the interest of the -- what is the interest of the state then that you think can override in making a --

Mr. John F. Cirricione: The operation --

Justice Byron R. White: -- (Voice Overlap) statement.

Mr. John F. Cirricione: -- of inefficient school system to provide our high school students with an adequate quality, secondary education.

Justice Byron R. White: You really don't distinguish them between true and false statement?

Mr. John F. Cirricione: I just think that the courts would not sustain a dismissal of a teacher where the statements are truthful and are justified in fact or have a reasonable justification --

Justice Byron R. White: It would seem to me you would be making an argument here that lies just shouldn't be protected by the First Amendment that the false statements -- and the only reason you would ever protect a false statement is for the reason that you'd protect a -- in Times, namely the -- in order to protect the truth, there's not a sufficient excuse here for protecting lies like there was in New York Times.

Mr. John F. Cirricione: Your Honor, I don't think we can look at this in the abstract.

I think we have to confine it to particular factual situations.

Justice Byron R. White: Well, were -- these factual situation though you were saying -- arguing apparently that some of the statements were true and therefore he may be fired?

Mr. John F. Cirricione: Some of the statements were found to be true by Justice Shafer?

Justice Byron R. White: I mean, some of the statements were false and therefore he may be fired, that's what you're saying?

Mr. John F. Cirricione: Yes.

Justice Byron R. White: But you -- but I would take it you would say that he could also be fired for making true ones if they were sufficiently disruptive?

Mr. John F. Cirricione: I -- right now I can't visualize a situation where that might occur but this could be very true.

The Cramridge (ph) case where the public employee, federal public employee wrote letters to fellow employees, wife stating that the husband or her husband was having an affair in the office.

Civil Service Commission said we don't care what the truth or false would be in that letter is.

We wanted to know how this is going to improve the efficiency of the federal service and they wouldn't let her show the truth or falsity of that letter.

Justice Thurgood Marshall: Did I understand you a little while ago when you state First Amendment argument was not made?

Mr. John F. Cirricione: No, no Your Honor it was made.

The vagueness of the Illinois statute was not raised in the complaint for administrative review --

Justice Thurgood Marshall: The First Amendment --

Mr. John F. Cirricione: -- it's made even now, and it's argued now.

Justice Thurgood Marshall: The First Amendment is -- been in from beginning until now?

Mr. John F. Cirricione: Yes sir, all the way.

Justice Thurgood Marshall: Suppose this same letter was written to the School Board and not published, would there have been any action?

Mr. John F. Cirricione: That's a good question Your Honor.

I hesitate to speculate on it.

I -- they may take action on it, but I doubt if the courts would ever sustain it.

Justice Thurgood Marshall: Suppose the same letter was read at an opening meeting of the School Board by the school teacher and the newspaper reported it?

Mr. John F. Cirricione: The teacher might be dismissed and the courts might sustain it and in -- at least in Illinois.

Justice Thurgood Marshall: Oh, you mean the Illinois courts might sustain.

Mr. John F. Cirricione: Yes.

Justice Thurgood Marshall: Oh, I see.

Justice Hugo L. Black: What is, just exactly where is this school located?

Mr. John F. Cirricione: Approximately 35 miles southwest of the City of Chicago Your Honor.

So a highly rapidly growing area, we have many, many problems.

Justice Hugo L. Black: What city is near?

Mr. John F. Cirricione: It's near the City of Joliet which is the home of Stateville Penitentiary.

I think that's our greatest claim of the fame there.

Your Honor, I think we have covered every point I wanted to raise by your questions.

If there's anything else, I would just sit down.

Chief Justice Earl Warren: Mr. Ligtenberg?

Rebuttal of John Ligtenberg

Mr. John Ligtenberg: Mr. Chief Justice, may it please the Court.

It's interesting that this letter was written after the election, not before.

I don't think that changes anything, but it does apparently have something to do with the -- after the board or this teacher.

Perhaps the letter as counsel said, was in some respects illogical, but please note that counsel cited nothing in these rules by which Pickering might have been warned that he could get into trouble except that rather a deceptive rule that letter should be submitted to the public relations director to avoid embarrassment and other things.

The -- throughout this case the Board has denied that that was supposed to be any kind of a break on prepublication.

It was only for the purpose of getting accuracy.

Justice Byron R. White: Well, why should the First Amendment protect false statements, just plain lies?

Mr. John Ligtenberg: I think --

Justice Byron R. White: That isn't certainly the functions of the First Amendment, I would suppose --

Mr. John Ligtenberg: The function of the First Amendment --

Justice Byron R. White: (Voice Overlap) to get accurate information around, so people can make it a reasonable decision.

Mr. John Ligtenberg: I think the exact points as stated by Your Honor.

The purpose of the First Amendment is to give the public correct information.

The first -- the purpose of the First Amendment and its -- the key to it is to allow open public debate so that correct information may be arrived at by the public.

For that purpose in order to establish -- to permit and to assure a debate by which the truth may be arrived at even false statements are protected.

Now --

Justice Byron R. White: Not knowingly false statements?

Mr. John Ligtenberg: Yes, they are, knowingly false statements unless they are malicious and unless they're done with the purpose of harming.

Now, in this case --

Justice Byron R. White: Well I didn't know that this Court had held that with the -- that the First Amendment protects knowingly false statements.

Mr. John Ligtenberg: If malicious -- unless maliciously made as I understand but now --

Justice Byron R. White: I know, that isn't -- I didn't know that was in New York Times.

Mr. John Ligtenberg: Well, as a matter -- in a corporate sense --

Justice Byron R. White: (Voice Overlap) I thought malice in the New York Times was -- whether the statement was knowingly false or recklessly made.

Mr. John Ligtenberg: Well, I think I have to stand corrected on that because that is true.

But in this case, I'm carried away in this case here by the fact that nobody said that these are knowingly false statements.

It did say that it was perhaps recklessly made, but they had nobody ever said that they were knowingly false and counsel didn't say so here.

Justice Byron R. White: Well, that maybe so, but explain to me why the First Amendment in this case, in this context should be held to protect a false statement.

It doesn't serve any utility whatsoever by itself standing alone.

Mr. John Ligtenberg: I think that if we cut the rule in that frame then we are getting into the question of constantly having to prove knowingly and that itself is the serious break on open public debate.

That was the -- my answer to this Your Honor.

Justice Byron R. White: Well, do you think -- you think it ought to go so far in -- you don't think that -- in the context of employer-employee relationship that perhaps the employee at least should have to take -- to resort to some normal sources of information before he publishes a statement that is false.

Mr. John Ligtenberg: The -- that I think in the first place sounds very reasonable.

In the second place, in the New York Times case, the New York times at least corporately had all the facts and the New York Times is excused in the basis that the --

Justice Byron R. White: That's quite a different situation I must say when somebody comes in and offers that --

Mr. John Ligtenberg: And now of course the --

Justice Byron R. White: -- (Voice Overlap) people they know and things like that but if its -- but there's a routine source of information where you can check out whether or not you're telling the public lies.

Do you think that's -- you don't think the person ought to perhaps resort that before he goes --

Mr. John Ligtenberg: Of course you limit it to your question as I understand it to the field of employment, public employment.

I think there was a case in the, the Len case I think in which it was said that a debate involving statements of this kind -- in private employment were protected.

Justice Byron R. White: But that was statutory test and that was --

Mr. John Ligtenberg: That was a statutory test --

Justice Byron R. White: -- federal statute.

Mr. John Ligtenberg: But I don't believe that we could in the First Amendment situation relegate that entire matter to a statute.

Now, at the same time we do not need to go that far in this case because in this case this charge is not made.

No court found that the statements made by Mr. Pickering were knowingly false, not even the Supreme Court of Illinois and not the Circuit Court of Will County.

None of those courts found that these statements are knowingly false.

I think --

Justice William J. Brennan: Did the Board make any finding that they were knowingly false?

Mr. John Ligtenberg: No, I don't think so Your Honor.

Justice William J. Brennan: Why?

I gather that's the agency we have to look to, isn't it in light of the limited nature of your traditional view?

Mr. John Ligtenberg: Except that -- yes, in the first instance except that I think in First Amendment cases the court will tend to examine the record for itself and come to it's own conclusion in matters of these kind, with that exception yes.

Now, if this kind of criticism is present in this case and in the Alaska case, is ground for discharge of teachers on the theory of -- that they should first exhaust their remedies then I think we're in trouble here because the public will only get one side.

Now, the counsel kept arguing that if you made the speech under different context or in different circumstances and the -- then it might be different or he said that it's so hard to get bond issues and tax referendum passed nowadays.

We have to be very certain about these things.

Now, it's precisely on that area that public debate is necessary in these situations.

The test here is the deploy information.

Now, as a matter of fact again, we understand here with the fact that if we read the testimony of Pickering which is in the record here beginning with some time after page 35 or 39 in appendix one, we certainly must say that he made an excellent presentation to show that he had reasonable grounds for what he believed and what he had written.

Now, this -- another thing is that in Illinois, there is no statute, rule or regulation which told Pickering where he would be judged by any other standards than -- by any other standards than other citizens.

We have I think the right to assume that in all cases, free speech is a highly protected right and that criticism of public officials in their conduct by statements not knowingly false is protected.

Free speech may be limited only by standards expressed in clear and precise language.

Now, I submit Your Honor --

Justice Potter Stewart: Mr. Ligtenberg, I assume you're --

Mr. John Ligtenberg: I beg your pardon.

Justice Potter Stewart: -- familiar with the federal cases cited by your Brother in opposition, cases like the Houston against the United States, Cramridge against the United States.

They are cited it in his brief and I assume you have read them.

Mr. John Ligtenberg: I haven't -- I'm not -- I can't, well recite.

Justice Potter Stewart: Well, what it involves, a federal employee who made charges against his superiors which were unsubstantiated and the Court of Claims held that that was probably good grounds for dismissal from the federal service.

Another involves a woman who made charges against fellow employees in letters that she wrote and the Court of Claims held that whether or not those were true, her claim, her defense -- I mean her claim was that her charges were true and the Court of Claims said whether or not those charges are true this -- she can be discharged from the federal service for the good of the service.

Is it -- those cases have any relevance to your case here?

Mr. John Ligtenberg: I think they would have some relevance and I would say of course I'm -- in my conviction --

Justice Potter Stewart: Have you read them (Voice Overlap) --

Mr. John Ligtenberg: -- that they're wrong, I read them quite some time ago and I would say that my conviction is around the rules that I expressed --

Justice Potter Stewart: If those (Voice Overlap) --

Mr. John Ligtenberg: (Voice Overlap) the applications of the right of free speech.

There's a -- in cases of this kind, now the woman who has going around slandering, now -- that I would think this is maybe else but --

Justice Potter Stewart: She claimed it was true, what she had (Voice Overlap) --

Mr. John Ligtenberg: I know she would be (Voice Overlap) --

Justice Potter Stewart: (Voice Overlap) --

Mr. John Ligtenberg: She didn't -- I don't know whether the proof there was -- or there was any basis for her claims or not.

Justice Potter Stewart: They wouldn't permit her to show that it was --

Mr. John Ligtenberg: This would be -- and I would argue for it certainly

Justice John M. Harlan: I probably wouldn't say I understand your argument, (Inaudible) that, the statute has changed to false statements?

I mean, just (Inaudible) --

Mr. John Ligtenberg: If this phrase just as Your Honor states that I would hold -- I would claim so, yes.

I would.

Justice John M. Harlan: You wouldn't say that the statute (Inaudible) --

Mr. John Ligtenberg: I would say so Your Honor.

I would say that our statute is about the best interest of the schools and the opinion of the Board is unconstitutionally obeyed because it doesn't tell us or is give us any standard if its -- when it's applied to the free speech area.

Your Honors, I'd like to --