DURYEA v. GUARNIERI

Opinion of the Court

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SUPREME COURT OF THE UNITED STATES
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No. 09–1476

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BOROUGH OF DURYEA, PENNSYLVANIA, ET AL.,

PETITIONERS v. CHARLES J. GUARNIERI

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

[June 20, 2011]

JUSTICE KENNEDY delivered the opinion of the court.

Among other rights essential to freedom, the First Amendment protects “the right of the people . . . to peti ­ tion the Government for a redress of grievances.” U. S. Const., Amdt. 1. This case concerns the extent of the protection, if any, that the Petition Clause grants public employees in routine disputes with government employ ­ ers. Petitions are a form of expression, and employees who invoke the Petition Clause in most cases could invoke as well the Speech Clause of the First Amendment. To show that an employer interfered with rights under the Speech Clause, the employee, as a general rule, must show that his speech was on a matter of public concern, as that term is defined in the precedents of this and other courts. Here the issue is whether that test applies when the employee invokes the Petition Clause.

Alone among the Courts of Appeals to have addressed the issue, the Court of Appeals for the Third Circuit has held that the public concern test does not limit Petition Clause claims by public employees. For the reasons stated below, this conclusion is incorrect. I

Charles Guarnieri filed a union grievance challenging his termination as chief of police for the borough of Duryea, a town of about 4,600 persons in northeastern Pennsylvania. His grievance proceeded to arbitration pursuant to the police union collective-bargaining agree ­ ment. The arbitrator found that the borough council, Duryea’s legislative body and the entity responsible for Guarnieri’s termination, committed procedural errors in connection with the termination; and the arbitrator also found that Guarnieri engaged in misconduct, including “attempting to intimidate Council members.” App. 37, 38. The arbitrator ordered Guarnieri reinstated after a disci ­ plinary suspension. Id., at 38.

Upon Guarnieri’s return to the job, the council issued 11 directives instructing Guarnieri in the performance of his duties. The council’s attorney explained that the council “wanted to be sure that the chief understood what was going to be expected of him upon his return.” Tr. 19:12–14 (Apr. 16, 2008). One directive prohibited Guarnieri from working overtime without the council’s “express permis ­ sion.” App. 59, ¶1. Another indicated that “[t]he police car is to be used for official business only.” Id., at 60, ¶9. A third stated that the “Duryea municipal building is a smoke free building” and that the “police department is not exempt.” Id., at 61, ¶10. Guarnieri testified that, because of these and other directives, his “coming back wasn’t a warm welcome feeling.” Tr. 65:7–8 (Apr. 15, 2008). Guarnieri filed a second union grievance challeng ­ ing the directives. The arbitrator instructed the council to modify or withdraw some of the directives on the grounds that they were vague, interfered with the authority of the mayor, or were contrary to the collective-bargaining agreement.

Guarnieri filed this lawsuit against the borough, the borough council, and individual members of the council under 42 U. S. C. §1983. Guarnieri claimed that his first union grievance was a petition protected by the Petition Clause of the First Amendment, and he alleged that the directives issued upon his reinstatement were retaliation for that protected activity.

After this suit was filed, the council denied a request by Guarnieri for $338 in overtime. The United States Department of Labor investigated and concluded that Guarnieri was entitled to be paid. The council offered Guarnieri a check for the amount, but Guarnieri refused to accept it. Instead, Guarnieri amended his complaint to encompass the denial of overtime. Guarnieri alleged that his §1983 lawsuit was a petition and that the denial of overtime constituted retaliation for his having filed the lawsuit.

Under the law of the Circuit, the defendants could not obtain judgment as a matter of law on the basis that the lawsuit and grievances were not on a matter of public concern. The case proceeded to a jury. Guarnieri’s attor ­ ney argued that the council was “sending a message to” Guarnieri through the directives and the denial of over­ time: “You might have won your arbitration, but we con ­ trol you.” Tr. 53:24–25 (Apr. 17, 2008). The District Court instructed the jury that the lawsuit and union grievances were “protected activity . . . under the constitution,” and that the jury could find defendants liable if it found an adequate connection between the protected activity and the alleged retaliation. Id., at 61:17–20; 62. The jury found in favor of Guarnieri. The jury awarded $45,000 in compensatory damages and $24,000 in punitive damages for the directives, as well as $358 in compensatory dam ­ ages and $28,000 in punitive damages for the denial of overtime. The District Court awarded $45,000 in attor ­ ney’s fees and denied defendants’ renewed motion for judgment as a matter of law.

Defendants appealed on the ground that Guarnieri’s grievances and lawsuit did not address matters of public concern. Courts outside the Third Circuit have held that allegedly retaliatory actions by government employers against government employees may not give rise to liabil ­ ity under the Petition Clause unless the employee’s peti ­ tion related to a matter of public concern. See, e.g., Kirby v. Elizabeth City, 388 F. 3d 440, 448–449 (CA4 2004); Tang v. Rhode Island, Dept. of Elderly Affairs, 163 F. 3d 7, 11–12 (CA1 1998); White Plains Towing Corp. v. Patterson, 991 F. 2d 1049, 1059 (CA2 1993). These courts rely on a substantial overlap between the rights of speech and petition to justify the application of Speech Clause pre ­ cedents to Petition Clause claims. They reason that, whether the grievance is considered under the Speech Clause or the Petition Clause, the government employer is entitled to take adverse action against the employee unless the dispute involves a matter of public concern.

Rejecting that view, the Court of Appeals here affirmed the award of compensatory damages, although it found insufficient evidence to sustain the award of punitive damages. The Court of Appeals concluded that “ ‘a public employee who has petitioned the government through a formal mechanism such as the filing of a lawsuit or griev ­ ance is protected under the Petition Clause from retalia ­ tion for that activity, even if the petition concerns a matter of solely private concern.’ ” 364 Fed. Appx. 749, 753 (CA3 2010) (quoting Foraker v. Chaffinch, 501 F. 3d 231, 236 (CA3 2007)). The decision of the Court of Appeals was consistent with the rule adopted and explained by that court in San Filippo v. Bongiovanni, 30 F. 3d 424, 442 (1994). This Court granted certiorari to resolve the con ­ flict in the Courts of Appeals. 562 U. S. ___ (2010).

II

When a public employee sues a government employer under the First Amendment’s Speech Clause, the em­ ployee must show that he or she spoke as a citizen on a matter of public concern. Connick v. Myers, 461 U. S. 138, 147 (1983). If an employee does not speak as a citizen, or does not address a matter of public concern, “a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” Ibid. Even if an employee does speak as a citizen on a matter of public concern, the employee’s speech is not automatically privileged. Courts balance the First Amendment interest of the employee against “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968).

This framework “reconcile[s] the employee’s right to engage in speech and the government employer’s right to protect its own legitimate interests in performing its mission.” San Diego v. Roe, 543 U. S. 77, 82 (2004) (per curiam). There are some rights and freedoms so funda ­ mental to liberty that they cannot be bargained away in a contract for public employment. “Our responsibility is to ensure that citizens are not deprived of [these] fundamen ­ tal rights by virtue of working for the government.” Connick, supra, at 147; see also Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589, 605–606 (1967). Nevertheless, a citizen who accepts public employment “must accept certain limitations on his or her freedom.” Garcetti v. Ceballos, 547 U. S. 410, 418 (2006). The gov ­ ernment has a substantial interest in ensuring that all of its operations are efficient and effective. That interest may require broad authority to supervise the conduct of public employees. “When someone who is paid a salary so that she will contribute to an agency’s effective operation begins to do or say things that detract from the agency’s effective operation, the government employer must have some power to restrain her.” Waters v. Churchill, 511 U. S. 661, 675 (1994) (plurality opinion). Restraints are justified by the consensual nature of the employment relationship and by the unique nature of the government’s interest.

This case arises under the Petition Clause, not the Speech Clause. The parties litigated the case on the prem ­ ise that Guarnieri’s grievances and lawsuit are petitions protected by the Petition Clause. This Court’s precedents confirm that the Petition Clause protects the right of in ­ dividuals to appeal to courts and other forums estab ­ lished by the government for resolution of legal disputes. “[T]he right of access to courts for redress of wrongs is an aspect of the First Amendment right to petition the gov ­ ernment.” Sure-Tan, Inc. v. NLRB, 467 U. S. 883, 896– 897 (1984); see also BE&K Constr. Co. v. NLRB, 536 U. S. 516, 525 (2002); Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U. S. 731, 741 (1983); California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508, 513 (1972). Al ­ though retaliation by a government employer for a public employee’s exercise of the right of access to the courts may implicate the protections of the Petition Clause, this case provides no necessity to consider the correct application of the Petition Clause beyond that context.

Although this case proceeds under the Petition Clause, Guarnieri just as easily could have alleged that his em ­ ployer retaliated against him for the speech contained within his grievances and lawsuit. That claim would have been subject to the public concern test already described. Because Guarnieri chose to proceed under the Petition Clause, however, the Court of Appeals applied a more generous rule. Following the decision of the Court of Appeals in San Filippo, supra, at 443, Guarnieri was deemed entitled to protection from retaliation so long as his petition was not a “sham.” Under that rule, defen ­ dants and other public employers might be liable under the Petition Clause even if the same conduct would not give rise to liability under the Speech Clause. The ques ­ tion presented by this case is whether the history and purpose of the Petition Clause justify the imposition of broader liability when an employee invokes its protection instead of the protection afforded by the Speech Clause.

It is not necessary to say that the two Clauses are iden ­ tical in their mandate or their purpose and effect to ac ­ knowledge that the rights of speech and petition share substantial common ground. This Court has said that the right to speak and the right to petition are “cognate rights.” Thomas v. Collins, 323 U. S. 516, 530 (1945); see also Wayte v. United States, 470 U. S. 598, 610, n. 11 (1985). “It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances.” Thomas, 323 U. S., at 530. Both speech and petition are integral to the democratic process, although not necessar ­ ily in the same way. The right to petition allows citizens to express their ideas, hopes, and concerns to their gov ­ ernment and their elected representatives, whereas the right to speak fosters the public exchange of ideas that is integral to deliberative democracy as well as to the whole realm of ideas and human affairs. Beyond the political sphere, both speech and petition advance personal expres­ sion, although the right to petition is generally concerned with expression directed to the government seeking re ­ dress of a grievance.

Courts should not presume there is always an essential equivalence in the two Clauses or that Speech Clause precedents necessarily and in every case resolve Petition Clause claims. See ibid. (rights of speech and petition are “not identical”). Interpretation of the Petition Clause must be guided by the objectives and aspirations that underlie the right. A petition conveys the special concerns of its author to the government and, in its usual form, re ­ quests action by the government to address those con ­ cerns. See Sure-Tan Inc., supra, at 896–897.

This Court’s opinion in McDonald v. Smith, 472 U. S. 479 (1985), has sometimes been interpreted to mean that the right to petition can extend no further than the right to speak; but McDonald held only that speech contained within a petition is subject to the same standards for defamation and libel as speech outside a petition. In those circumstances the Court found “no sound basis for grant ­ ing greater constitutional protection to statements made in a petition . . . than other First Amendment expres ­ sions.” Id., at 485. There may arise cases where the special concerns of the Petition Clause would provide a sound basis for a distinct analysis; and if that is so, the rules and principles that define the two rights might differ in emphasis and formulation.

As other Courts of Appeals have recognized, however, claims of retaliation by public employees do not call for this divergence. See supra, at 4. The close connection between these rights has led Courts of Appeals other than the Third Circuit to apply the public concern test devel ­ oped in Speech Clause cases to Petition Clause claims by public employees. As will be explained further, this ap­ proach is justified by the extensive common ground in the definition and delineation of these rights. The considera ­ tions that shape the application of the Speech Clause to public employees apply with equal force to claims by those employees under the Petition Clause.

The substantial government interests that justify a cautious and restrained approach to the protection of speech by public employees are just as relevant when public employees proceed under the Petition Clause. Petitions, no less than speech, can interfere with the efficient and effective operation of government. A petition may seek to achieve results that “contravene governmen ­ tal policies or impair the proper performance of govern ­ mental functions.” Garcetti, 547 U. S., at 419. Govern ­ ment must have authority, in appropriate circumstances, to restrain employees who use petitions to frustrate pro ­ gress towards the ends they have been hired to achieve. A petition, like other forms of speech, can bring the “mission of the employer and the professionalism of its officers into serious disrepute.” Roe, 543 U. S., at 81. A public em ­ ployee might, for instance, use the courts to pursue per ­ sonal vendettas or to harass members of the general public. That behavior could cause a serious breakdown in public confidence in the government and its employees. And if speech or petition were directed at or concerned other public employees, it could have a serious and detri ­ mental effect on morale.

When a petition takes the form of a lawsuit against the government employer, it may be particularly disruptive. Unlike speech of other sorts, a lawsuit demands a re ­ sponse. Mounting a defense to even frivolous claims may consume the time and resources of the government em ­ ployer. Outside the context of public employment, this Court has recognized that the Petition Clause does not protect “objectively baseless” litigation that seeks to “ ‘in ­ terfere directly with the business relationships of a competitor.’ ” Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U. S. 49, 60–61 (1993) (quoting Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127, 144 (1961)). In recognition of the substantial costs imposed by litigation, Congress has also required civil rights plaintiffs whose suits are “frivolous, unreasonable, or without foundation” to pay attorney’s fees incurred by defendants. Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 421 (1978); see also Fed. Rule Civ. Proc. 11 (providing sanctions for claims that are “presented for [an] improper purpose,” frivolous, or lacking evidentiary support). The government likewise has a significant interest in disciplining public employees who abuse the judicial process.

Unrestrained application of the Petition Clause in the context of government employment would subject a wide range of government operations to invasive judicial super ­ intendence. Employees may file grievances on a variety of employment matters, including working conditions, pay, discipline, promotions, leave, vacations, and terminations. See Brief for National School Boards Association as Amicus Curiae 5. Every government action in response could present a potential federal constitutional issue. Judges and juries, asked to determine whether the gov ­ ernment’s actions were in fact retaliatory, would be re ­ quired to give scrutiny to both the government’s response to the grievance and the government’s justification for its actions. This would occasion review of a host of collateral matters typically left to the discretion of public officials. Budget priorities, personnel decisions, and substantive policies might all be laid before the jury. This would raise serious federalism and separation-of-powers concerns. It would also consume the time and attention of public offi ­ cials, burden the exercise of legitimate authority, and blur the lines of accountability between officials and the public.

This case illustrates these risks and costs. Guarnieri’s attorney invited the jury to review myriad details of gov ­ ernment decisionmaking. She questioned the council’s decision to issue directives in writing, rather than orally, Tr. 66 (Apr. 14, 2008); the council’s failure to consult the mayor before issuing the directives, id., at 105 (Apr. 15, 2008); the amount of money spent to employ “Philadelphia lawyers” to defend Guarnieri’s legal challenges, id., at 191–193:7–10 (Apr. 14, 2008); 152–153 (Apr. 16, 2008); and the wisdom of the council’s decision to spend money to install Global Positioning System devices on police cars, id., at 161–162 (same). Finally, the attorney invited the jury to evaluate the council’s decisions in light of an emo ­ tional appeal on behalf of Guarnieri’s “little dog Hercules, little white fluffy dog and half Shitsu.” Id., at 49:13–14 (Apr. 14, 2008). It is precisely to avoid this intrusion into internal governmental affairs that this Court has held that, “while the First Amendment invests public employ ­ ees with certain rights, it does not empower them to ‘con ­ stitutionalize the employee grievance.’ ” Garcetti, supra, at 420 (quoting Connick, 461 U. S., at 154).

If the Petition Clause were to apply even where matters of public concern are not involved, that would be unneces ­ sary, or even disruptive, when there is already protection for the rights of public employees to file grievances and to litigate. The government can and often does adopt statu ­ tory and regulatory mechanisms to protect the rights of employees against improper retaliation or discipline, while preserving important government interests. Cf. Garcetti, supra, at 425 (noting a “powerful network of legislative enactments”). Employees who sue under federal and state employment laws often benefit from generous and quite detailed antiretaliation provisions. See, e.g., Pa. Stat. Ann., Tit. 43, §1101.1201(a)(4) (Purdon 2009); §1101.1302. These statutory protections are subject to legislative revi ­ sion and can be designed for the unique needs of State, local, or Federal Governments, as well as the special circumstances of particular governmental offices and agencies. The Petition Clause is not an instrument for public employees to circumvent these legislative enact ­ ments when pursuing claims based on ordinary workplace grievances.

In light of the government’s interests in the public employment context, it would be surprising if Petition Clause claims by public employees were not limited as necessary to protect the employer’s functions and respon ­ sibilities. Even beyond the Speech Clause, this Court has explained that “government has significantly greater leeway in its dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large.” Engquist v. Oregon Dept. of Agriculture, 553 U. S. 591, 599 (2008); see also NASA v. Nelson, 562 U. S. ___ , ___ (2011) (slip op., at 12). The government’s interest in managing its internal affairs requires proper restraints on the invocation of rights by employees when the workplace or the government employer’s responsibilities may be af ­ fected. There is no reason to think the Petition Clause should be an exception.

The public concern test was developed to protect these substantial government interests. Adoption of a different rule for Petition Clause claims would provide a ready means for public employees to circumvent the test’s pro ­ tections. Consider Sheila Myers, who was the original plaintiff in Connick. She circulated “a questionnaire soliciting the views of her fellow staff members” on various office matters. 461 U. S., at 141. The Court held that Myers’ claim for retaliation failed the public concern test because the questionnaire was “most accurately character ­ ized as an employee grievance concerning internal office policy.” Id., at 154. It would undermine that principle if a different result would have obtained had Myers raised those same claims using a formal grievance procedure. Myers’ employer “reasonably believed [Myers’ complaints] would disrupt the office, undermine his authority, and destroy close working relationships.” Ibid. These con ­ cerns would be no less significant in the context of a for ­ mal grievance. Employees should not be able to evade the rule articulated in the Connick case by wrapping their speech in the mantle of the Petition Clause.

Articulation of a separate test for the Petition Clause would aggravate potential harm to the government’s interests by compounding the costs of compliance with the Constitution. A different rule for each First Amendment claim would require employers to separate petitions from other speech in order to afford them different treatment; and that, in turn, would add to the complexity and ex­ pense of compliance with the Constitution. Identifying peti­ tions might be easy when employees employ formal griev ­ ance procedures, but the right to petition is not limited to petitions lodged under formal procedures. See, e.g., Brown v. Louisiana, 383 U. S. 131 (1966). Indeed, the employee in Connick could have made a colorable argu ­ ment that her questionnaire ought to be viewed as a peti ­ tion for redress of grievances.

Guarnieri claims application of the public concern test to the Petition Clause would be inappropriate in light of the private nature of many petitions for redress of griev ­ ances. The Petition Clause undoubtedly does have force and application in the context of a personal grievance addressed to the government. See, e.g., Trainmen v. Virginia ex rel. Virginia State Bar, 377 U. S. 1 (1964); Thomas, 323 U. S., at 530–531. At the founding, citizens petitioned on a wide range of subjects, including matters of both private and public concern. Petitions to the colo ­ nial legislatures concerned topics as diverse as debt ac ­ tions, estate distributions, divorce proceedings, and re ­ quests for modification of a criminal sentence. Higginson, A Short History of the Right to Petition Government for the Redress of Grievances, 96 Yale L. J. 142, 146 (1986). Although some claims will be of interest only to the indi ­ vidual making the appeal, for that individual the need for a legal remedy may be a vital imperative. See, e.g., M. L. B. v. S. L. J., 519 U. S. 102 (1996); Boddie v. Connecticut, 401 U. S. 371 (1971). Outside the public em ­ ployment context, constitutional protection for petitions does not necessarily turn on whether those petitions relate to a matter of public concern.

There is, however, no merit to the suggestion that the public concern test cannot apply under the Petition Clause because the majority of petitions to colonial legislatures addressed matters of purely private concern. In analogous cases under the Speech Clause, this Court has noted the “Constitution’s special concern with threats to the right of citizens to participate in political affairs,” Connick, supra, at 145, even though it is likely that, in this and any other age, most speech concerns purely private matters. The proper scope and application of the Petition Clause like­ wise cannot be determined merely by tallying up petitions to the colonial legislatures. Some effort must be made to identify the historic and fundamental principles that led to the enumeration of the right to petition in the First Amendment, among other rights fundamental to liberty.

Petitions to the government assume an added dimension when they seek to advance political, social, or other ideas of interest to the community as a whole. Petition, as a word, a concept, and an essential safeguard of freedom, is of ancient significance in the English law and the AngloAmerican legal tradition. See, e.g., 1 W. Blackstone, Commentaries *143. The right to petition applied to peti ­ tions from nobles to the King, from Parliament to the King, and from the people to the Parliament, and it con ­ cerned both discrete, personal injuries and great matters of state.

The right to petition traces its origins to Magna Carta, which confirmed the right of barons to petition the King. W. McKechnie, Magna Carta: A Commentary on the Great Charter of King John 467 (rev. 2d ed. 1958). The Magna Carta itself was King John’s answer to a petition from the barons. Id., at 30–38. Later, the Petition of Right of 1628 drew upon centuries of tradition and Magna Carta as a model for the Parliament to issue a plea, or even a de ­ mand, that the Crown refrain from certain actions. 3 Car. 1, ch. 1 (1627). The Petition of Right stated four principal grievances: taxation without consent of Parliament; arbi ­ trary imprisonment; quartering or billeting of soldiers; and the imposition of martial law. After its passage by both Houses of Parliament, the Petition received the King’s assent and became part of the law of England. See S. Gardiner, The First Two Stuarts and the Puritan Revo ­ lution, 1603–1660, pp. 60–61 (1886). The Petition of Right occupies a place in English constitutional history super ­ seded in importance, perhaps, only by Magna Carta itself and the Declaration of Right of 1689.

The following years saw use of mass petitions to address matters of public concern. See 8 D. Hume, History of England from the Invasion of Julius Caesar to the Revolu ­ tion in 1688, p. 122 (1763) (“Tumultuous petitioning . . . was an admirable expedient . . . for spreading discontent, and for uniting the nation in any popular clamour”). In 1680, for instance, more than 15,000 persons signed a petition regarding the summoning and dissolution of Par ­ liament, “one of the major political issues agitating the nation.” Knights, London’s ‘Monster’ Petition, 36 Histori ­ cal Journal 39, 40–43 (1993). Nine years later, the Decla ­ ration of Right listed the illegal acts of the sovereign and set forth certain rights of the King’s subjects, one of which was the right to petition the sovereign. It stated that “it is the Right of the Subjects to petition the King, and all Commitments and Prosecutions for such Petitioning are Illegal.” 1 W. & M., ch. 2; see also L. Schwoerer, The Declaration of Rights, 1689, pp. 69–71 (1981).

The Declaration of Independence of 1776 arose in the same tradition. After listing other specific grievances and wrongs, it complained, “In every stage of these Oppres ­ sions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.” The Declaration of Independence ¶30.

After independence, petitions on matters of public con ­ cern continued to be an essential part of contemporary debates in this country’s early history. Two years before the adoption of the Constitution, James Madison’s Memo ­ rial and Remonstrance against Religious Assessments, an important document in the history of the Establishment Clause, was presented to the General Assembly of the Com­ monwealth of Virginia as a petition. See 1 D. Laycock, Religious Liberty: Overviews and History 90 (2010); Arizona Christian School Tuition Organization v. Winn, 563 U. S. ___ , ___ (2011) (slip op., at 12–13). It attracted over 1,000 signatures. Laycock, supra, at 90, n. 153. During the ratification debates, Antifederalists circulated petitions urging delegates not to adopt the Constitution absent modification by a bill of rights. Boyd, Antifederalists and the Acceptance of the Constitution: Pennsylvania, 1787–1792, 9 Publius, No. 2, pp. 123, 128– 133 (Spring 1979).

Petitions to the National Legislature also played a central part in the legislative debate on the subject of slavery in the years before the Civil War. See W. Miller, Arguing About Slavery (1995). Petitions allowed partici ­ pation in democratic governance even by groups excluded from the franchise. See Mark, The Vestigial Constitution: The History and Significance of the Right to Petition, 66 Ford. L. Rev. 2153, 2182 (1998). For instance, petitions by women seeking the vote had a role in the early woman’s suffrage movement. See Cogan & Ginzberg, 1846 Petition for Woman’s Suffrage, New York State Constitutional Convention, 22 Signs 427, 437–438 (1997). The right to petition is in some sense the source of other fundamental rights, for petitions have provided a vital means for citi ­ zens to request recognition of new rights and to assert existing rights against the sovereign.

Petitions to the courts and similar bodies can likewise address matters of great public import. In the context of the civil rights movement, litigation provided a means for “the distinctive contribution of a minority group to the ideas and beliefs of our society.” NAACP v. Button, 371 U. S. 415, 431 (1963). Individuals may also “engag[e] in litigation as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public.” In re Primus, 436 U. S. 412, 431 (1978). Litigation on matters of public concern may facilitate the informed public participation that is a cor ­ nerstone of democratic society. It also allows individuals to pursue desired ends by direct appeal to government officials charged with applying the law.

The government may not misuse its role as employer unduly to distort this deliberative process. See Garcetti, 547 U. S., at 419. Public employees are “the members of a community most likely to have informed and definite opinions” about a wide range of matters related, directly or indirectly, to their employment. Pickering, 391 U. S., at 572. Just as the public has a right to hear the views of public employees, the public has a right to the benefit of those employees’ participation in petitioning activity. Petitions may “allow the public airing of disputed facts” and “promote the evolution of the law by supporting the development of legal theories,” NLRB, 536 U. S., at 532 (internal quotation marks omitted), and these and other benefits may not accrue if one class of knowledgeable and motivated citizens is prevented from engaging in petition ­ ing activity. When a public employee seeks to participate, as a citizen, in the process of deliberative democracy, either through speech or petition, “it is necessary to regard the [employee] as the member of the general public he seeks to be.” Pickering, supra, at 574.

The framework used to govern Speech Clause claims by public employees, when applied to the Petition Clause, will protect both the interests of the government and the First Amendment right. If a public employee petitions as an employee on a matter of purely private concern, the employee’s First Amendment interest must give way, as it does in speech cases. Roe, 543 U. S., at 82–83. When a public employee petitions as a citizen on a matter of public concern, the employee’s First Amendment interest must be balanced against the countervailing interest of the government in the effective and efficient management of its internal affairs. Pickering, supra, at 568. If that balance favors the public employee, the employee’s First Amendment claim will be sustained. If the interference with the government’s operations is such that the balance favors the employer, the employee’s First Amendment claim will fail even though the petition is on a matter of public concern.

As under the Speech Clause, whether an employee’s petition relates to a matter of public concern will depend on “the content, form, and context of [the petition], as revealed by the whole record.” Connick, 461 U. S., at 147– 148, and n. 7. The forum in which a petition is lodged will be relevant to the determination of whether the petition relates to a matter of public concern. See Snyder v. Phelps, 562 U. S. ___ , ___ (2011) (slip op., at 8–9). A peti ­ tion filed with an employer using an internal grievance procedure in many cases will not seek to communicate to the public or to advance a political or social point of view beyond the employment context.

Of course in one sense the public may always be inter ­ ested in how government officers are performing their duties. But as the Connick and Pickering test has evolved, that will not always suffice to show a matter of public concern. A petition that “involves nothing more than a complaint about a change in the employee’s own duties” does not relate to a matter of public concern and accord­ ingly “may give rise to discipline without imposing any special burden of justification on the government em ­ ployer.” United States v. Treasury Employees, 513 U. S. 454, 466 (1995). The right of a public employee under the Petition Clause is a right to participate as a citizen, through petitioning activity, in the democratic process. It is not a right to transform everyday employment disputes into matters for constitutional litigation in the federal courts. III

Because the Third Circuit did not find it necessary to apply this framework, there has been no determination as to how it would apply in the context of this case. The parties did not address the issue in the opening brief or the response, and the United States did not address the issue in its brief as amicus curiae. In their reply brief, petitioners suggest that this Court should address the issue and resolve it in their favor. Yet in their opening brief petitioners sought only vacatur and remand. This Court need not consider this issue without the benefit of full briefs by the parties.

The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

THOMAS, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
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No. 09–1476

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BOROUGH OF DURYEA, PENNSYLVANIA, ET AL.,

PETITIONERS v. CHARLES J. GUARNIERI

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

[June 20, 2011]

JUSTICE THOMAS, concurring in the judgment.

For the reasons set forth by JUSTICE SCALIA, I seriously doubt that lawsuits are “petitions” within the original meaning of the Petition Clause of the First Amendment. See post, at 2–3 (opinion concurring in judgment in part and dissenting in part). Unreasoned statements to the contrary in this Court’s prior decisions do not convince me otherwise. Like the Court, however, I need not decide that question today because “[t]he parties litigated the case on the premise that Guarnieri’s grievances and lawsuit are petitions protected by the Petition Clause.” Ante, at 6.

I also largely agree with JUSTICE SCALIA about the framework for assessing public employees’ retaliation claims under the Petition Clause. The “public concern” doctrine of Connick v. Myers, 461 U. S. 138 (1983), is rooted in the First Amendment’s core protection of speech on matters of public concern and has no relation to the right to petition. See post, at 3–7. I would not import that test into the Petition Clause. Rather, like JUSTICE SCALIA, I would hold that “the Petition Clause protects public employees against retaliation for filing petitions unless those petitions are addressed to the government in its capacity as the petitioners’ employer, rather than its capacity as their sovereign.” Post, at 7.

But I would not end the analysis after determining that a petition was addressed to the government as sovereign. Recognizing “the realities of the employment context,” we have held that “government has significantly greater leeway in its dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large.” Engquist v. Oregon Dept. of Agriculture, 553 U. S. 591, 600, 599 (2008). Even where a public employee petitions the government in its capacity as sovereign, I would balance the employee’s right to petition the sovereign against the government’s interest as an employer in the effective and efficient management of its internal affairs. Cf. Garcetti v. Ceballos, 547 U. S. 410, 419 (2006) (noting that employees “speaking as citizens about matters of public concern” still must “face . . . speech restrictions that are necessary for their employers to operate efficiently and effectively”); United States v. Treasury Employees, 513 U. S. 454, 492 (1995) (Rehnquist, C. J., dissenting) (“In conducting this balance [in the Speech Clause context], we consistently have given substantial weight to government employers’ reasonable predictions of disruption, even when the speech involved was on a matter of public concern”); O’Connor v. Ortega, 480 U. S. 709, 721–722 (1987) (plurality opinion) (balancing the “the realities of the workplace” against the “legitimate privacy interests of public employees” to conclude that a warrant requirement would “seriously disrupt the routine conduct of business” and “be unduly burdensome”). In assessing a retaliation claim under the Petition Clause, courts should be able to conclude that, in instances when the petition is especially disruptive, as some lawsuits might be, the balance of interests may weigh in favor of the government employer.

Applying this framework, I would vacate the judgment and remand. The Court of Appeals erred with respect to both Guarnieri’s union grievance and his 42 U. S. C. §1983 suit. First, even assuming the grievance was a petition, it was addressed to the local government in its capacity as Guarnieri’s employer. See post, at 8 (opinion of SCALIA, J.). Second, Guarnieri addressed his §1983 suit to the Federal Government in its capacity as sovereign, not to the local government as his employer. See ibid. But the Court of Appeals did not consider whether the local government’s interest as an employer “in achieving its goals as effectively and efficiently as possible” nevertheless outweighs Guarnieri’s interest in petitioning the Federal Government regarding his local employment. Engquist, supra, at 598 (internal quotation marks omitted). I would vacate and remand for the Court of Appeals to conduct that analysis in the first instance.

Opinion of SCALIA, J.

SUPREME COURT OF THE UNITED STATES
_________________

No. 09–1476

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BOROUGH OF DURYEA, PENNSYLVANIA, ET AL.,

PETITIONERS v. CHARLES J. GUARNIERI

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

[June 20, 2011]

JUSTICE SCALIA, concurring in the judgment in part and dissenting in part.

I disagree with two aspects of the Court’s reasoning. First, the Court is incorrect to state that our “precedents confirm that the Petition Clause protects the right of individuals to appeal to courts and other forums established by the government for resolution of legal disputes.” Ante, at 6. Our first opinion clearly saying that lawsuits are “Petitions” under the Petition Clause came less than 40 years ago. In California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508 (1972),1 an opinion by Justice Douglas, the Court asserted that “[t]he right of access to the courts is indeed but one aspect of the right of petition.” Id., at 510. As authority it cited two habeas corpus cases, Johnson v. Avery, 393 U. S. 483 (1969), and Ex parte Hull, 312 U. S. 546 (1941), neither of which even mentioned the Petition Clause. The assertion, moreover, was pure dictum. The holding of California Motor Transport was that the Noerr-Pennington doctrine, a judicial gloss on the Sherman Act that had been held to immunize certain lobbying (legislature-petitioning) activity, did not apply to sham litigation that “sought to bar . . . competitors from meaningful access to adjudicatory tribunals,” 404 U. S., at 510–512. The three other cases cited by the Court as holding that lawsuits are petitions, ante, at 6, are all statutory interpretation decisions construing the National Labor Relations Act, albeit against the backdrop of the Petition Clause. See BE&K Constr. Co. v. NLRB, 536 U. S. 516, 534–536 (2002); Sure-Tan, Inc. v. NLRB, 467 U. S. 883, 896–897 (1984) Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U. S. 731, 741–743 (1983). The Court has never actually held that a lawsuit is a constitutionally protected “Petition,” nor does today’s opinion hold that. The Court merely observes that “[t]he parties litigated the case on the premise that Guarnieri’s grievances and lawsuit are petitions protected by the Petition Clause,” ante, at 6, and concludes that Guarnieri’s 42 U. S. C. §1983 claim would fail even if that premise were correct.

I find the proposition that a lawsuit is a constitutionally protected “Petition” quite doubtful. The First Amendment’s Petition Clause states that “Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances.” The reference to “the right of the people” indicates that the Petition Clause was intended to codify a pre-existing individual right, which means that we must look to historical practice to determine its scope. See District of Columbia v. Heller, 554 U. S. 570, 579, 592 (2008).

There is abundant historical evidence that “Petitions” were directed to the executive and legislative branches of government, not to the courts. In 1765, the Stamp Act Congress stated “[t]hat it is the right of the British subjects in these colonies to petition the King or either House of Parliament.” Declaration of Rights and Grievances, Art. 13, reprinted in 1 B. Schwartz, The Bill of Rights: A Documentary History 195, 198 (1971); it made no mention of petitions directed to the courts. As of 1781, seven state constitutions protected citizens’ right to apply or petition for redress of grievances; all seven referred only to legislative petitions. See Andrews, A Right of Access to Court Under the Petition Clause of the First Amendment: Defining the Right, 60 Ohio St. L. J. 557, 604–605, n. 159 (1999). The Judiciary Act of 1789 did not grant federal trial courts jurisdiction to hear lawsuits arising under federal law; there is no indication anyone ever thought that this restriction infringed on the right of citizens to petition the Federal Government for redress of grievances. The fact that the Court never affirmed a First Amendment right to litigate until its unsupported dictum in 1972— after having heard almost 200 years’ worth of lawsuits, untold numbers of which might have been affected by a First Amendment right to litigate—should give rise to a strong suspicion that no such right exists. “[A] universal and long-established tradition of prohibiting certain conduct creates a strong presumption that the prohibition is constitutional: Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation’s consciousness.” Nevada Comm’n on Ethics v. Carrigan, ante, at 4 (internal quotation marks omitted).

I acknowledge, however, that scholars have made detailed historical arguments to the contrary. See, e.g., Andrews, supra, at 595–625; Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 Nw. U. L. Rev. 899, 903–962 (1997). As the Court’s opinion observes, the parties have not litigated the issue, and so I agree we should leave its resolution to another day.

Second, and of greater practical consequence, I disagree with the Court’s decision to apply the “public concern” framework of Connick v. Myers, 461 U. S. 138 (1983), to retaliation claims brought under the Petition Clause. The Court correctly holds that the Speech Clause and Petition Clause are not co-extensive, ante, at 7–8. It acknowledges, moreover, that the Petition Clause protects personal grievances addressed to the government, ante, at 13. But that is an understatement—rather like acknowledging that the Speech Clause protects verbal expression. “[T]he primary responsibility of colonial assemblies was the settlement of private disputes raised by petitions.” Higginson, A Short History of the Right to Petition Government for the Redress of Grievances, 96 Yale L. J. 142, 145 (1986). “[T]he overwhelming majority of First Congress petitions presented private claims.” 8 Documentary History of the First Federal Congress 1789–1791, p. xviii (K. Bowling, W. DiGiacomantonio, & C. Bickford eds. 1998). The Court nonetheless holds that, at least in public employment cases, the Petition Clause and Speech Clause should be treated identically, so that since the Speech Clause does not prohibit retaliation against public employees for speaking on matters of private concern, neither does the Petition Clause. The Court gives two reasons for this: First, “[a] different rule for each First Amendment claim would . . . add to the complexity and expense of compliance with the Constitution” and “would provide a ready means for public employees to circumvent the test’s protections,” and second, “[p]etitions to the government . . . assume an added dimension when they seek to advance political, social, or other ideas of interest to the community as a whole.” Ante, at 12–14.

Neither reason is persuasive. As to the former: The complexity of treating the Petition Clause and Speech Clause separately is attributable to the inconsiderate disregard for judicial convenience displayed by those who ratified a First Amendment that included both provisions as separate constitutional rights. A plaintiff does not engage in pernicious “circumvention” of our Speech Clause precedents when he brings a claim premised on a separate enumerated right to which those precedents are inapplicable.

As to the latter: Perhaps petitions on matters of public concern do in some sense involve an “added dimension,” but that “added dimension” does not obliterate what has traditionally been the principal dimension of the Petition Clause. The public-concern limitation makes sense in the context of the Speech Clause, because it is speech on matters of public concern that lies “within the core of First Amendment protection.” Engquist v. Oregon Dept. of Agriculture, 553 U. S. 591, 600 (2008). The Speech Clause “has its fullest and most urgent application to speech uttered during a campaign for political office.” Citizens United v. Federal Election Comm’n, 558 U. S. ___, ___ (2010) (slip op., at 23) (internal quotation marks omitted). The unique protection granted to political speech is grounded in the history of the Speech Clause, which “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Connick, supra, at 145 (internal quotation marks omitted).

But the mere fact that we have a longstanding tradition of granting heightened protection to speech of public concern does not suggest that a “public concern” requirement should be written into other constitutional provisions. We would not say that religious proselytizing is entitled to more protection under the Free Exercise Clause than private religious worship because public proclamations are “core free exercise activity.” Nor would we say that the due process right to a neutral adjudicator is heightened in the context of litigation of national importance because such litigation is somehow at the “core of the due process guarantee.” Likewise, given that petitions to redress private grievances were such a high proportion of petitions at the founding—a proportion that is infinitely higher if lawsuits are considered to be petitions—it is ahistorical to say that petitions on matters of public concern constitute “core petitioning activity.” In the Court’s view, if Guarnieri had submitted a letter to one of the borough of Duryea’s council members protesting a tax assessment that he claimed was mistaken; and if the borough had fired him in retaliation for that petition; Guarnieri would have no claim for a Petition Clause violation. That has to be wrong. It takes no account of, and thus frustrates, the principal purpose of the Petition Clause.

The Court responds that “[t]he proper scope and application of the Petition Clause . . . cannot be determined merely by tallying up petitions to the colonial legislatures,” ante, at 14, but that misses the point. The text of the Petition Clause does not distinguish petitions of public concern from petitions of private concern. Accordingly, there should be no doctrinal distinction between them unless the history or tradition of the Petition Clause justifies it. The mere fact that the Court can enumerate several historical petitions of public importance, ante, at 14– 16, does not establish such a tradition, given that petitions for redress of private grievances vastly outnumbered them. Indeed, the Court’s holding is contrary to this Court’s historical treatment of the Petition Clause, assuming (as the Court believes) that the Clause embraces litigation: We have decided innumerable cases establishing constitutional rights with respect to litigation, and until today not a one of them has so much as hinted that litigation of public concern enjoys more of those rights than litigation of private concern. The Court’s belief in the social importance of public petitions, and its reminiscences of some of the public-petition greats of yesteryear, ibid., do not justify the proclamation of special constitutional rights for public petitions. It is the Constitution that establishes constitutional rights, not the Justices’ notions of what is important, or the top numbers on their Petition Hit Parade. And there is no basis for believing that the Petition Clause gives special protection to public petitions.

Rather than shoehorning the “public concern” doctrine into a Clause where it does not fit, we should hold that the Petition Clause protects public employees against retaliation for filing petitions unless those petitions are addressed to the government in its capacity as the petitioners’ employer, rather than its capacity as their sovereign. As the Court states, we have long held that “government has significantly greater leeway in its dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large.” Ante, at 11–12 (quoting Engquist, supra, at 599; internal quotation marks omitted). To apply to the Petition Clause context what we have said regarding the Speech Clause: When an employee files a petition with the government in its capacity as his employer, he is not acting “as [a] citize[n] for First Amendment purposes,” because “there is no relevant analogue to [petitions] by citizens who are not government employees.” Garcetti v. Ceballos, 547 U. S. 410, 421, 423– 424 (2006). To be sure, the line between a petition addressed to government as the petitioner’s employer and one addressed to it as sovereign is not always clear, but it is no more fuzzy than the line between matters of private and matters of public concern.2 The criterion I suggest would largely resolve the legitimate practical concerns identified by the Court, ante, at 10–12, while recognizing and giving effect to the difference between the Speech and Petition Clauses.

Under what I think to be the proper test, the Third Circuit judgment before us here should be reversed in part and affirmed in part. The portion of it upholding Guarnieri’s claim of retaliation for having filed his union grievance must be reversed. A union grievance is the epitome of a petition addressed to the government in its capacity as the petitioner’s employer. No analogous petitions to the government could have been filed by private citizens, who are not even permitted to avail themselves of Guarnieri’s union grievance procedure. Contrariwise, the portion of the judgment upholding Guarnieri’s claim of retaliation for having filed his §1983 claim must be affirmed. Given that Guarnieri was not an employee of the Federal Government, it is impossible to say that the §1983 claim was addressed to government in its capacity as his employer. I think it clear that retaliating against a state employee for writing a letter to his Congressman about his state job would run afoul of the Petition Clause. Assuming that the §1983 lawsuit should be treated like a letter to a Congressman for Petition Clause purposes—a proposition which, I again emphasize, is doubtful, but which the parties do not dispute in this case—retaliation for having filed his lawsuit also violates the Clause.

1 Respondent would agree, since he cited this case in argument as the earliest. Tr. of Oral Arg. 36. There were, however, three cases in the 1960’s which adverted vaguely to lawsuits as involving the right to petition. See Mine Workers v. Illinois Bar Assn., 389 U. S. 217, 222– 224 (1967); Trainmen v. Virginia ex rel. Virginia State Bar, 377 U. S. 1, 7 (1964); NAACP v. Button, 371 U. S. 415, 430 (1963).

2 Compare, e.g., Alpha Energy Savers, Inc. v. Hansen, 381 F. 3d 917, 927 (CA9 2004) (testimony concerning claim of employment discrimination by government contractor constituted matter of public concern because “[l]itigation seeking to expose . . . wrongful governmental activity is, by its very nature, a matter of public concern”), with Padilla v. South Harrison R-II School Dist., 181 F. 3d 992, 997 (CA8 1999) (teacher’s testimony approving sexual relationship between teacher and minor was matter of private concern because it “does not relate to the teacher’s legitimate disagreement with a school board’s policies”). And compare, e.g., Voigt v. Savell, 70 F. 3d 1552, 1560 (CA9 1995) (speech regarding how judge handled two internal personnel matters was matter of public concern because “[t]he public has an interest in knowing whether the court treats its job applicants fairly”), with Maggio v. Sipple, 211 F. 3d 1346, 1353 (CA11 2000) (testimony at hearing concerning employee grievance was matter of private concern because it did “not allege . . . fraud or corruption in [defendant’s] implementation of its personnel policies and appeal procedures”).

Print this transcript Transcript: 

ORAL ARGUMENT OF DANIEL R. ORTIZ ON BEHALF OF THE PETITIONERS

Chief Justice John G. Roberts: We will hear argument first this morning in Case 09-1476, The Borough of Duryea v. Guarnieri.

Mr. Ortiz.

Mr. Ortiz: Mr. Chief Justice, and may it please the Court:

In asking this Court to cabin Connick v. Myers' public concern requirement, Respondent would constitutionalize, under the Petition Clause, large parts of the law of public employee discipline, and thereby grant to public employees a broad constitutional employment right that private employees do not enjoy.

Two independent reasons, however, argue strongly for applying the public concern requirement to discipline claims brought both under the Free Speech and the Petition Clauses.

First, the constitutional framework principles this Court has repeatedly identified in its public employment cases argue strongly for requiring it.

And second, McDonald v. Smith's principle of parity argues strongly for creating no hierarchy between the Free Speech and Petition Clauses.

When--

Justice Antonin Scalia: You agree that the Petition Clause is -- is different and does have a separate content?

Mr. Ortiz: --Your Honor, we agree that the Petition Clause -- that when the Petition Clause and the Free Speech Clause cover the same activity, they apply -- they cover it under McDonald in the same way.

Justice Antonin Scalia: But the Speech Clause, in the employment context, has been interpreted to cover the content.

Whether it -- whether it applies or not depends upon the content, right?

Mr. Ortiz: One part of that inquiry turns on the content.

Justice Antonin Scalia: And you want the Petition Clause also to turn on the content?

Mr. Ortiz: Part of the inquiry, yes, Your Honor, should turn on the content.

Justice Antonin Scalia: But it seems to me you're either petitioning the government or you're not petitioning the government.

Why -- why shouldn't the line be, if you're petitioning the government as employer is different from petitioning the government as ruler?

Why shouldn't that be the line that we draw?

Mr. Ortiz: Well, the--

Justice Antonin Scalia: Which wouldn't necessarily break out the same way as whether it's a matter of private concern versus a matter of public concern.

Mr. Ortiz: --Your Honor, this -- under the constitutional background principles this Court has developed, this Court should look at -- looks at how close to the core a particular example of employee activity is, and then talks about how much of a burden that kind of activity poses to the efficient operation of the workplace.

Justice Antonin Scalia: But the core -- the core of the Petition Clause is petitioning.

The core of the Free Speech Clause is political speech, of course -- speech in public interest -- but the core of the Petition Clause is quite different.

It's simply whether you're petitioning.

Surely you -- you could petition the -- most of the petitions in the early years were regarding private matters; isn't that right?

Mr. Ortiz: That is right, Your Honor, just as most examples of speech concern private matters, too.

Yet that does not define the core of the Free Speech Clause.

There's not an empirical inquiry.

That depends upon the purpose of the clause.

And as this Court stated very definitely in McDonald, the core of the Petition Clause, like the Free Speech Clause, was -- was aimed at promoting democratic self-government.

Petitioning is a particular form of speech.

It is speech directed to a particular audience, the government, some arm of government, some individual in government, and it is speech that has a particular purpose: Asking for a change of some sort in government policy.

Justice Antonin Scalia: That's true, and it seems to me the -- the core is involved whenever you're asking for a change.

And it seems to me that the key distinction, if there is one, is whether you're asking for a change in -- by your employer in your employment conditions or a change by the government in some matters over which the government has control as -- as sovereign.

Mr. Ortiz: Well, Your Honor, in practice, that inquiry would not align much differently than the Connick inquiry.

Justice Antonin Scalia: It may well be, may well be.

Mr. Ortiz: And in this particular case, designing a kind of threshold inquiry along those lines would actually advantage Petitioners.

One difficulty in application, though, is that this Court has always identified the purpose of the Connick threshold test as categoricalizing in a way the Pickering balancing inquiry.

And if you had a threshold test that basically did not match, was a little oblique to the Pickering balancing inquiry, it would create much more work for the lower courts along the way.

Or perhaps this Court would want to change the Pickering balancing inquiry.

Justice Antonin Scalia: Would they have to do both?

Would they have to do both?

Mr. Ortiz: They might well, Your Honor.

If the Pickering balancing inquiry still aligns with the traditional framework that this Court has described in its employment cases, what I describe, and this other inquiry, which you're suggesting, Justice Scalia, was somewhat oblique to it, then it might conceivably be necessary to do both.

One--

Justice Antonin Scalia: If you're proceeding with a claim under two separate provisions of the Constitution, it should not be surprising that you might have two different tests.

Mr. Ortiz: --Well, Your Honor, then that might argue for more reengineering of the rest of the -- the enterprise as well, a step that this Court has not identified as appropriate under--

Justice Ruth Bader Ginsburg: Why would it make -- why would it make a difference at what you call the balancing stage whether it is -- whether the distinction is between public speech and private speech on the one hand or government as employer and government as sovereign on the other?

Why would there be any difference?

Mr. Ortiz: --Well, Your Honor, if at the first stage the Court is running an inquiry that is something different from Connick, that is not going to map onto traditional Pickering balancing, at least as this Court has described it, at the second stage.

Justice Ruth Bader Ginsburg: Why not?

Mr. Ortiz: Because, Your Honor, Pickering balancing has gone to things like how -- how -- how important that particular example of speech is, how close it is to the core of what the First Amendment protects, and then that is weighed against the kind of burden it would place on the government to have that activity protected in a very strong way.

Justice Antonin Scalia: I think all you're saying is that one of the elements of Pickering balancing is the element of Petition Clause jurisprudence, as I suggested it -- it might be applied; that is, in Pickering balancing, certainly you have to ask, was what the individual was asking for a change in employment conditions?

That would be one of the questions.

If so, it was a private matter, and then you go on to the rest of the balancing.

But it seems to me you have to make that determination under Pickering balancing anyway, and once you make it, you've answered the -- the Petition Clause question.

Mr. Ortiz: Well, Your Honor, if this -- if this Court were to proceed down that road, Petitioners, I believe, would still end up victorious.

This is a case, as I understand your -- your approach, where the petition does concern purely employment matters.

It is not a petition aimed at or directed at the government in its capacity as sovereign, so under that kind of analysis, that is where the initial trigger, this case, would have not been constitutionalized.

Justice Sonia Sotomayor: What kind of case, hypothetically, would qualify under your theory as a petitioning case to the sovereign?

Would a claim of retaliation because of a termination based on race qualify?

Mr. Ortiz: It would depend upon the particular claims involved, or statements in the petition.

If it were a statement that there was a policy, involved a petition against a policy in a government department involving race, that would certainly qualify.

That would be like the Gibbons case under the Free Speech Clause, Your Honor.

If, however, it were a one-off allegation that a particular, say, low-level governmental supervisor had engaged in a form of discriminatory activity--

Justice Sonia Sotomayor: Doesn't that get to the -- to the merits of the case?

You have to from -- you can't invite a question as to whether the sovereign is responsible until you litigate the issue.

So what is the -- addressing Justice Scalia's question to you, what would qualify as a petition to the employer as opposed to a petition to the sovereign and why?

Mr. Ortiz: --Your Honor, a petition to the employer about changing the hours of employment--

Justice Sonia Sotomayor: Those are clear cases.

Mr. Ortiz: --for overtime--

Justice Sonia Sotomayor: I was asking the flip.

Mr. Ortiz: --The flip.

A petition, a complaint to an employer about the employer's pervasive or apparently pervasive policies in violation of the law, would certainly qualify as something to -- a petition to the sovereign.

Justice Antonin Scalia: Of course, you have to wrestle with the same problem if you apply the other test that you -- you were proposing.

Mr. Ortiz: For sure.

Justice Antonin Scalia: Namely, whether it's a private matter or a matter of public concern.

You confront the same difficulty, don't you?

Mr. Ortiz: You certainly do, Your Honor, and presumably this Court would look at some of the same factors involved there: The form, the content, and the context of the communication.

All of those things are relevant.

This Court has admitted that that inquiry is sometimes messy, that there are some -- many cases where the line of distinction is not clear.

But it is -- this Court has not hesitated to apply that test because of its importance to the public employment environment.

Justice Ruth Bader Ginsburg: Mr. Ortiz, you're not drawing any line depending on the branch of government, in other words, executive, legislature.

Those are certainly branches of government to which one can petition.

But access to court you agree comes within the Petition Clause?

Mr. Ortiz: A lawsuit, pursuing a lawsuit, is definitely a form of petitioning activity, Your Honor.

Petitioners do not contest that.

Justice Ruth Bader Ginsburg: What about the -- this as I understand it, came up originally as arbitration under the -- wasn't it under the collective bargaining contract?

Mr. Ortiz: Yes, Your Honor, that is the case.

Justice Ruth Bader Ginsburg: Would that count also, because it is a mechanism set up by a government employer?

Mr. Ortiz: It would qualify under the original conception of what a petition is all about that was in this case.

It is Petitioner's view that it would not qualify under the access to courts definition or conception of petition that Respondent has developed since the case was first before the district court.

Justice Antonin Scalia: If -- if lawsuits are covered by the Petition Clause, why is it that in the innumerable cases this Court has had concerning what due process of law consists of, we've never mentioned what the Petition Clause requires.

I mean, if the Petition Clause guarantees access to the courts, certainly there are some minimum requirements that it imposes as well, and I don't recall any of our cases dealing with lawsuits that mention the Petition Clause.

That's rather extraordinary if indeed it governs all lawsuits.

Mr. Ortiz: Well, Your Honor, that might be explained by the fact that the Due Process Clause has been interpreted more robustly and supplies a certain floor of constitutional protection for lawsuits.

And the Petition Clause, since it is directed at petitions generally and in particular the framers, the evidence is, had in mind not petitions to the courts, but petitions to the legislature, if lawsuits--

Justice Antonin Scalia: Maybe that's all they had in mind, or petitions to the executive as well.

What -- what evidence do you have that it applied to lawsuits?

Mr. Ortiz: --The evidence is that developed by Professor Andrews, and the argument is a somewhat slender one that goes as follows: At the time of founding, Congress was the central sort of clearinghouse for petitions and handled both what we think of as the stereotypical paradigmatic petitions, pleas to Congress to sort of change the law, and also handled a lot of private bills.

Over time, Congress handed over much of the responsibility for handling the things that came through private bills to the courts, and so to the extent -- this is Respondent's argument -- that the courts handled, took over those things, the lawsuits are protected.

Justice Antonin Scalia: I agree with you that that's slender.

Mr. Ortiz: Thank you, Your Honor.

Justice Ruth Bader Ginsburg: But you are not challenging that, as I understand.

Mr. Ortiz: No, Your Honor.

In the district court it was conceded that the grievance activity would be -- was protected.

However, Petitioners do contest quite sharply that under Respondent's new view of the Petition Clause that the things of central importance are lawsuits and other communications that would be protected, perhaps be protected, otherwise under the access to courts doctrine, that arbitration, the arbitration involved in this case, does not count and should not receive any kind of heightened protection.

The problem, much of the problem here, is the theory of what is a petition from Respondent's side has changed from the district court to this Court.

Justice Elena Kagan: Mr. Ortiz, can I try a hypothetical on you?

Suppose that there is a city employee and unrelated to the fact that he is a city employee the government takes some part of his property without just compensation.

And he sues the government, and the government says, somebody says, his employer, that his supervisor said: Do you know what he's just done?

He's just sued the city; I think we should fire him.

And he brings a retaliation claim.

Is that protected under the Petition Clause?

Mr. Ortiz: Yes, Your Honor, it would be protected for two different reasons.

First, that would -- similar activity would be protected under the Free Speech Clause, so that would preserve the principle of parity.

Second--

Justice Elena Kagan: Really?

What has he done that's protected under the Free Speech Clause?

He has brought a suit saying: I'm entitled to just compensation.

It seems to me -- the reason I ask is because this seems to me a purely private matter which would not get protection under your test.

Mr. Ortiz: --It's not employment-related or related to his particular job, and this Court has always drawn the distinction there.

For example, in National Treasury Employees Union this Court applied that kind of analysis.

Justice Elena Kagan: I see, so that goes back to Justice Scalia's difference test, which is it's not a matter of public concern versus private concern, but it's a matter of employment-related versus not employment-related, correct?

Is that correct?

Mr. Ortiz: Well, that shows how closely those two things have been related in this Court's approach.

In -- but certainly something that is privately-related, a public employee is complaining about tax assessment or something like that and tries to sue for retaliation under, under that theory, not for anything related to his or her job, this Court -- under this Court's and the lower court's application of the Connick principles, there would be no problem there treating it as speech or as a petition.

So it is only when the lawsuit or the petition involves something related to the person's employment that these particular -- this particular test would kick in.

And that's consistent, Your Honor, with this Court's twin background constitutional framework principles, one that you look at how much disruption something is likely to pose to the workforce and how central it is to the particular constitutional provision involved.

In this case, if in general it's not employment-related the government has much less interest in worrying over it this way and applying the Connick threshold test is much less justified.

You would have to do Pickering balancing, proceed directly to Pickering balancing in that case.

Now, Your Honor, Respondent's view presents several problems of sort of practical application, or would, to this Court.

First, it would allow for the easy circumvention of Connick, which is a test that on the free speech side this Court has long held is very important for the public employment field to work efficiently.

It would be very easy for a particular employee to take activity that Connick would not allow to proceed, to turn into a lawsuit on the free speech clause, and just by rephrasing it, respinning it, whatever, to turn it into a petition where under Respondent's rule the result would be very different.

It also would require the Court to create a hierarchy between speech claims and petition claims, and, more importantly, if the Court were to go down the particular road that Respondent describes and see the center of the Petition Clause as defined by the access to courts doctrine it would create a hierarchy among different forms of petition.

All of a sudden, petitions that at the founding were thought to be at the periphery, if there, of the Petition Clause would define its center, and a paradigmatic petition of a letter to Congress asking it to change its position on something would not be covered at all.

If there are no further questions, I would like to retain my remaining time for rebuttal.

Chief Justice John G. Roberts: Thank you, Mr. Ortiz.

Mr. Palmore.

ORAL ARGUMENT OF JOSEPH R. PALMORE, ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

Mr. Palmore: Mr. Chief Justice, and may it please the Court:

The Third Circuit rule here at issue is flawed for two fundamental reasons.

First, contrary to this Court's admonitions, it quite literally constitutionalizes the employee grievance process by supplanting carefully calibrated nonconstitutional safeguards and by providing a potential First Amendment claim in Federal court to any employee who has filed a grievance on a matter of only private interest.

And second--

Justice Sonia Sotomayor: How much of your argument is premised on the fact that there was an alternative mechanism to the court system available.

Mr. Palmore: --That certainly--

Justice Sonia Sotomayor: Meaning let's assume there wasn't a collective bargaining agreement, let's assume there wasn't a State law protection, all of the items that you mention in your brief as existing to resolve disputes, that the only avenue for redress were the courts.

So where would that put your argument?

Mr. Palmore: --Well, it's a hard hypothetical to answer, of course, because the grievance was filed pursuant to the collective bargaining agreement.

Justice Sonia Sotomayor: Putting it aside.

You -- you were talking about constitutionalizing a grievance process.

I'm going more broadly and saying how much of your argument depends on that fact?

Mr. Palmore: Well, I think that's an important part--

Justice Sonia Sotomayor: What was the meaning would -- it is harder if all they have access to is a court proceeding.

Mr. Palmore: --I think that's an important part of the argument, for this reason: If you look at the Third Circuit's case in San Filippo, the court had a kind of a doctrinal basis for its ruling, but it also had a practical concern that not affording protection for this kind of petitioning activity would be a trap to the unwary.

But there was really no basis for that concern, because the issue here is when a sovereign provides a remedial mechanism or enters into a collective bargaining agreement that provides a remedial mechanism--

Justice Sonia Sotomayor: How about if they don't?

Mr. Palmore: --It typically -- well--

Justice Sonia Sotomayor: How about if they don't?

That's my point.

Then what happens to the Third Circuit's definition?

Mr. Palmore: --Well, then I think the -- the result is the same, and -- and our position is you -- you still apply Connick, just as speech on matters of private concern is protected by the First Amendment, yet under Connick, an employee who engages in speech on a matter of private concern is not going to be protected in the employment context in all respects.

And that reflects a very important balance that this Court has struck between its view of how the Constitution applies to the government as sovereign regulator of the general public and how it applies to the government and its proprietary status as an employer.

And in that latter situation, Connick has been critical in providing a bulwark against allowing run-of-the-mill employment disputes from becoming constitutional cases in Federal Court.

And the second main problem with the Third Circuit's approach, and it's one that Mr. Ortiz highlighted, is that it privileges petition activity over speech activity, contrary to this Court's numerous statements that there is no such hierarchy in the First Amendment.

So going back to Thomas v. Collins in 1945, the Court called the two rights inseparable.

In the United Mine Workers case, which is a case relied on by the other side, it's an access to courts case, the Court interchangeably applied the speech right, the petition right, and the assembly right, and it said they were intimately connected in origin and purpose.

And, of course--

Justice Elena Kagan: Mr. Palmore -- I'm sorry.

Mr. Palmore: --No, please.

Justice Elena Kagan: Suppose a State legislature passes a law depriving all State employees of collective bargaining rights, and a State employee files a lawsuit saying that this law violates the State constitution, and the State employee is thereupon fired.

Is that a matter of public concern or not?

Mr. Palmore: It -- it likely would be, and I think this -- this goes to some of the questions Justice Scalia was asking.

But as this Court said in Connick that the question about -- of whether speech is a matter of public concern is assessed not only by the content, but by the form and the context.

So in the case that Your Honor is positing, the content of the -- of the speech, which was that an act of the legislature was illegal, would suggest that it was a matter of public concern, the form, the form of a lawsuit is relevant to the consideration, and the context that it came in part of a larger political debate would likely be relevant, too.

The problem with the Third Circuit approach is that it never engages in that kind of inquiry.

Justice Elena Kagan: And suppose -- now going back to Justice Sotomayor's example, suppose that there were a -- a class action alleging systemic discrimination in some governmental workplace.

Would that be a matter of public concern?

Mr. Palmore: It very well might be.

That's similar to this Court's decision in the GiVon case.

So that was a case where a teacher went to complain to her principal about the school's general policy of discrimination, and this Court held that that was speech on a matter of public concern, that it affected more than just that individual employee's employment status.

So many of these hypotheticals and many submissions and petitions to the government as sovereign will, in fact, satisfy the public concern test, and then you'll get into Pickering balancing.

Justice Anthony Kennedy: Do you -- can you think of any instance where speech by the employee would not be protected under the Pickering-Connick free speech calculus but would be protected under the Petition Clause?

Mr. Palmore: I think that, no, if you put it in that way; this Court has never separately analyzed the two.

But I think it is important to note that I think the Connick test already takes into account the distinction between what might be deemed petitioning conduct and non-petitioning conduct because of its use of the term "form".

So, again, the Connick test calls on courts to look on the content, the context and the form.

So if the form of an employee complaint takes the form of a lawsuit filed in Federal court, that's something that -- that should be taken into account.

Justice Antonin Scalia: What -- wouldn't a -- a written letter to -- to the employer, the government employer, similarly be a petition?

Is a lawsuit any more of a petition, if indeed it is a petition at all, which I doubt?

Surely filing a statement with the employer is a petition as well.

So how does the form make any difference?

Mr. Palmore: I -- it's -- I think it's a serious question about whether a letter submitted to an employer as an employer, not as a sovereign, is a petition.

But that's the kind of line-drawing that the Third Circuit approach requires.

This Court has had a very broad conception of what counts as petitioning activity, so in Edwards v. South Carolina the Court said that a march to the grounds of the State capitol in South Carolina to protest segregation was an example of petitioning conduct in its most classic and pristine form.

The Third Circuit doesn't -- doesn't count -- wouldn't count that as a petition for this purpose.

It has kind of a gerrymandered view of what will count as a petition, basically a lawsuit and an employee grievance.

Now, the -- the approach followed by the majority of the circuits and the approach we advocate today doesn't require that kind of line-drawing, because whether, for example, the grievance filed in this case is a petition or not, it's certainly speech, and so we would agree that it's susceptible to analysis under the normal Connick v. Myers framework.

Justice Ruth Bader Ginsburg: Mr. Palmore, what about the distinction that the other side brings up that Connick is about what happens inside the workplace -- you don't want to disrupt the routine by the kind of activity in which Myers was involved -- but the Petition Clause, they're talking about conduct outside the workplace, that is a complaint filed in court, nothing that's happening in the workplace.

Mr. Palmore: Well, I think it's workplace-related and I think that's the test.

So I don't think it -- you know, where an employee physically was when he or she filed the petition isn't really relevant.

The question is the connection to the workplace and the connection to the employer-employee relationship.

So as Mr. Ortiz answered before, the NTEU case provides a separate set of protections under the First Amendment, under the speech protection for employees who engage in speech conduct that has no connection to the workplace, and it would limit the ability of a government employer to take action against such an employee.

But the conduct here is the -- the grievances that were filed here were obviously intimately connected to the workplace relationship between Chief Guarnieri and the Borough Council.

This was not a case like NTEU, where someone wanted to go out and give a speech on something that had no connection to their job or go out and file a lawsuit or some kind of petitioning activity on something that had no connection to the workplace.

Justice Elena Kagan: Mr. Palmore, on that matter, one last hypothetical.

Suppose the New York City council passed a resolution that said a precinct house would be closed all night long from 7 p.m. to 7 a.m., and the chief of -- of that precinct filed suit saying that this was micromanagement and it was going to affect the public safety of the citizenry, and then that chief of police was fired.

Is that a matter of public concern?

Mr. Palmore: It very well might be.

It's hard to answer in the abstract, because what this Court has said is that the question has to be analyzed in light of the whole record and in light of the context -- content, the context, and the form.

It's not necessary for this Court in this case to decide whether the petitioning and speech activity here was on a matter of public or private concern.

The question presented says that it was on a matter of private concern.

So all the Court needs to decide is -- is whether that makes a difference or not in terms of the constitutional analysis.

And then the Third Circuit on remand could -- could decide, assuming the arguments were preserved, could look at the whole record and decide whether the speech activity here was on a matter of public or private concern.

If there are no further questions, we ask the judgment be reversed.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Schnapper.

ORAL ARGUMENT OF ERIC SCHNAPPER ON BEHALF OF THE RESPONDENT

Mr. Schnapper: Mr. Chief Justice, and may it please the Court:

Neither the text, history, or purpose of the Petition Clause nor the interest of a government employer in an efficient workplace provide a basis for distinguishing and giving less protection to a petition because it didn't involve a matter of public concern.

The text of the Petition Clause certainly draws no such distinction.

The subject of the petition must be a grievance and a grievance I think is measured by whether the matter is of concern to the petitioner.

If it's a problem of concern to the petitioner, that satisfies that constitutional element.

It does not matter whether the public cares a lot, it doesn't care--

Chief Justice John G. Roberts: But all of our cases have equated the Petition Clause reach with that of the First Amendment, and our cases under the First Amendment have made clear that we don't want to constitutionalize the -- the employee grievance procedures.

Mr. Schnapper: --Well, with all respect, Mr. Chief Justice, I don't think this Court is committed to the view that the Petition Clause and the Free Speech Clause cover exactly the same things.

In fact, emphatically they -- obviously they don't because the Free Speech Clause covers many things that the Petition Clause would not.

It covered, for example, the remark--

Chief Justice John G. Roberts: Does the Petition Clause cover anything that the First Amendment does not?

Mr. Schnapper: --I believe so, Your Honor.

This Court's decisions in the antitrust area and under the National Labor Relations Act with regard to -- an -- access to the government or -- or the courts, they've always been framed solely in terms of the Petition Clause, not the Free Speech Clause.

It would be at least very awkward to characterize those -- those problems as free speech cases, particularly where, as is typically the case, the -- the underlying activity was on the part of, say, a lawyer rather than an individual who -- who is asserting the petition right.

Chief Justice John G. Roberts: Well, getting back to the second part of my question--

Mr. Schnapper: Yes.

Chief Justice John G. Roberts: --in the First Amendment cases we were concerned about, as I said, constitutionalizing employee grievances.

If you constitutionalize it under the Petition Clause, how is that any less a problem of constitutionalizing it under the First Amendment?

Mr. Schnapper: Well, it -- it's our view, Mr. Chief Justice, that -- and in this respect to some extent I think we agree with a statement made by Petitioners -- that every gripe that an individual employee might have, indeed most of them, wouldn't be covered by the Petition Clause.

In the petition reply brief, the Petitioners state, and we agree with this, that the ordinary, routine e-mails, give and take within the office, that's not covered by the Petition Clause.

We would agree with that.

Chief Justice John G. Roberts: All you have to do then is add a sentence to your complaint saying: This is an example of how the government employer mistreats its employees?

Mr. Schnapper: No.

Chief Justice John G. Roberts: And then it becomes more generalized?

Mr. Schnapper: No, no, Your Honor.

That -- that -- that's their view, that -- that it becomes a matter of public concern if you say it affects a lot of people.

Our view is that that's not relevant.

It--

Justice Ruth Bader Ginsburg: What if added to that is "and I'm going to sue" or

"I'm going to file a grievance? "

Mr. Schnapper: --No, Your Honor, saying that wouldn't have that effect.

The case to which they refer is one in which an employee indicated, as indeed occurred, that he was going to file a lawsuit, and the employer retaliated in a peremptory fashion because of that.

That -- that's been the rule in the Third Circuit, it has only come up twice, but if I might point out, that's the rule under any -- any number of Federal statutes which protect filing a charge with the EEOC or filing a lawsuit.

The lower courts have agreed--

Justice Anthony Kennedy: Well, under -- under the First Amendment speech clause--

Mr. Schnapper: --Yes.

Justice Anthony Kennedy: --We have said that an employee's, public employee's, right to speech can be regulated, can be confined, can be restricted beyond what the State could do for a nonemployee.

Are you saying that if -- if the Petition Clause is involved there is no right to restrict what the -- employer does?

Mr. Schnapper: No, Your Honor.

No, Your Honor.

The government--

Justice Anthony Kennedy: Then you have to offer a test and you don't want the public concern test, so what's your test?

Mr. Schnapper: --The, the -- that it, the government's interest as an employer is part of the calculus if -- if this issue arose under the Petition Clause, and under ordinary balancing one would look at the nature of the government's interest and the degree of burden that's imposed, and that's the way the Court has administered the Petition Clause.

Justice Anthony Kennedy: And you would be content to apply that analytic, broad analytic framework to the Petition Clause?

Mr. Schnapper: Yes, that's what the Court has done.

Now, that said, I think there are circumstances where the government would be hard pressed to argue that it had a generalized interest in stopping a particular form of petition.

For example, the Petitioners express a considerable unhappiness that they're subject to suit under section 1983.

It's expensive, it requires lawyers, they could have to pay counsel fees.

Those are judgments that the Congress of the United States made in 1871 when it adopted section 1983.

It knew the government was -- local governments would be subject to it.

When the Congress strikes that balance, and -- and of course, section 1983 is a very complicated piece of machinery -- the balance Congress struck is -- is ordinarily going to be controlling--

Justice Antonin Scalia: Well, let's talk about it.

I find it difficult to believe that lawsuits are covered by the Petition Clause when it is very clear that the Congress can prevent all lawsuits against the Federal Government by simply refusing to waive sovereign immunity.

Now, you know, how can you have a constitutional guarantee of the right to petition the government, which you say includes the -- the right to -- to be in law court, and yet the Federal Government can exempt itself from suits in law courts?

Mr. Schnapper: --Your Honor, the -- the Federal Government is not obligated to provide a -- a lower court system for -- authorized to hear suits against it.

Justice Antonin Scalia: I'm not talking about just a lower court system.

I'm talking about all suits, right up to the Supreme Court.

The Federal Government can say: You can't sue us.

Mr. Schnapper: It can.

But it cannot set up a court system and then punish government employees for using it.

They are not -- historic -- if I might step back a couple hundred years here, the--

Justice Antonin Scalia: You're saying that the Petition Clause only covers those petitions that the government chooses to allow; is -- is that what the constitutional guarantee is?

If you choose to allow a certain kind of petition, it is constitutionally guaranteed.

That's not much of a guarantee.

Mr. Schnapper: --No, I think -- I think historically that -- that's a fairly accurate description of what has happened with the emergence of the Petition Clause over the last 6 or 700 years of Anglo-American history.

There were no courts to which people could seek redress against the crown at the time of Magna Carta.

Over time the courts became available to do that.

Insofar as they did, on our view, the Petition Clause would now apply.

And if I might turn to a question you asked earlier.

You expressed some skepticism about whether the Petition Clause applies to lawsuits.

I note that in at least half a dozen decisions that this Court has held that, and I think that was the premise of your concurring opinion in the BE & K Construction case a few years ago.

And we don't in this regard have to get deeply into history in the debate about whether courts are covered.

The text of the First -- of the Petition Clause is sufficient on its face.

It doesn't say petitions to the legislature.

It says petitions to the government, and that was clearly a deliberate choice, because the States--

Justice Ruth Bader Ginsburg: Mr. Schnapper, you can write a letter to the president, you can write a letter to your congressional representative, but getting to a court, you have to pay a filing fee.

And since this would be a civil case, this Court has held if you haven't got whatever is the filing fee amount, too bad, you don't have access to the Court.

Mr. Schnapper: --Yes, Your Honor, and I think those cases are clearly distinguishable.

The -- the core historical purpose of concern of the Petition Clause was reprisals by the government against people for -- for petitioning the government.

There's a fundamental difference here between what's at stake here, where the Borough is asserting a right to punish people for going to court, and the question about whether the government has an affirmative obligation to remove the incidental barriers that may exist to bringing lawsuits.

Justice Samuel Alito: Do you -- do you think--

Mr. Schnapper: And so, we think those cases are distinguishable.

Justice Ruth Bader Ginsburg: Are you suggesting that in one of these suits you wouldn't have to pay the filing fee?

Mr. Schnapper: No, no, precisely to the contrary.

We are asserting only that the government cannot punish Mr. Guarnieri for filing a lawsuit.

We are not suggesting the government has to pay his filing fee, any more than if -- if the -- if Mr. Guarnieri wants to go to Harrisburg and meet with his or her representative, the government, our view, Duryea, can't punish him for doing it, but they don't have to give him gas money, and if he doesn't have enough money for gas that's just too bad.

Justice Samuel Alito: --Suppose the Borough here bought something from a company under a contract that included an arbitration clause.

Would that, would the right of the company to engage in arbitration be protected by the Petition Clause?

Mr. Schnapper: Yes.

The -- we believe the Petition Clause applies to government-created mechanisms for redressing grievances; and if the government sets up an arbitration procedure like that, we think that that's covered.

An arbitration agreement between two private parties would not be, be covered by the Petition Clause, because the government wouldn't have been involved in standing that up.

And that distinction really has its roots in history.

The petition started out; back at the time of Magna Carta petitions only went to the king.

Over time the British government and ultimately the American government developed other mechanisms that were simply more efficient.

So that, for example, at the time the Petition Clause was written, Congress received a large number of petitions from wounded veterans, and after several years of dealing with that it adopted the Invalid Pension Act and turned that over to a somewhat unusual combination of administrative and judicial officials.

So I think the creation of--

Justice Antonin Scalia: What's the earliest English or American case you have that refers to a lawsuit as protected by the Petition Clause?

Mr. Schnapper: --I'm not familiar with English law in that respect.

With regard to the decisions of this Court, I think it's California Motor Transport, which I think is about 40 years ago.

Justice Antonin Scalia: How many?

Mr. Schnapper: About 40.

Justice Antonin Scalia: 40 years ago.

Mr. Schnapper: There's precious little--

Justice Antonin Scalia: So for a couple hundred years, nobody -- nobody connected the two?

Mr. Schnapper: --Many of the constitutional issues this Court deals with were not raised for -- for a very long period of time.

Justice Anthony Kennedy: In the Garcetti case, the district attorney was disciplined for sending a memo because he disagreed with how the trial strategy was supposed to unfold, and then he actually made that argument in court and was disciplined for that.

Would he have been protected if he had just gone to court to sue the office of the district attorney on some sort of a prospective injunction saying, with reference to all search warrants you should follow the following procedures?

Would that have been protected, even though the memo was not?

Mr. Schnapper: Well, it would have been a petition.

It would not necessarily have been protected.

The government has an interest in such matters as an employer, and that might indeed outweigh--

Justice Anthony Kennedy: Would you have objected if the same analysis were used in the Petition Clause case as in the actual case?

Just take the--

Mr. Schnapper: --Right, right.

The question is, was the--

Justice Anthony Kennedy: --Just white out "Speech Clause" and put in "Petition Clause" and file the same opinion?

Mr. Schnapper: --The question I take it you're asking is -- is whether the Garcetti principle would apply to a Petition Clause case where the government -- it was part of the official--

Justice Anthony Kennedy: I want to know how the analytic framework differs.

Mr. Schnapper: --I don't -- I don't think -- the specific question is whether the Garcetti rule should apply in a Petition Clause case.

I don't think we have a position on that.

It's not raised in this case.

Justice Elena Kagan: Well, Mr. Schnapper, can I ask Justice Kennedy's question in maybe a little bit of a different way?

In -- in the Connick inquiry, you have a threshold inquiry and then you have a balancing test.

Now, you're suggesting that the threshold inquiry, the public concern inquiry, is kind of apples and oranges here; it's just not appropriate for the Petition Clause.

But the question that then follows is, should there be a replacement threshold inquiry before you get to the balancing that Connick suggests is the second stage of the process?

Mr. Schnapper: Probably not in the sense that you're asking.

There would be a threshold inquiry as to whether what had happened was petitioning.

If it were, this Court's decisions indicate that the Court might impose a threshold inquiry consistent with, say, the line of cases, most recently BE&K Construction, as to whether the underlying petition had a -- a reasonable basis or was -- had been pursued in good faith.

But I think if you got past that, then there would be no further threshold.

Justice Samuel Alito: What if a number of municipal employees prepare a formal document called "Petition", and they say: We have a grievance, and our grievance is that the quality of the food in the cafeteria is poor?

Now, is that protected by the Petition Clause?

Mr. Schnapper: As you describe it, on our view, not so, because our view is that, putting aside the historical and somewhat unusual but less common instance of a petition directed to, let's say at the Federal level the Congress or the president, the Petition Clause ordinarily applies only where the government has created a specific remedial mechanism for addressing a particular kind of grievance.

It's something that's just outside the ordinary give-and-take of the office, something like, you know, a separate agency or an arbitrator or a court, something like that.

And that -- there's an historical--

Justice Samuel Alito: Where does that rule come from?

It's drawn out of thin air?

Mr. Schnapper: --No.

No, it isn't.

That's the -- historically, that's the kind of distinction that was there.

If you had a problem in England, if the undersheriff took your cow, you could go to the sheriff, but historically, that wasn't called a petition.

If you went to the king, that was a petition.

It was not going to the local.

So we -- we do have a great deal of historical material, as Justice Scalia points out, about individuals, including Federal Government officials, petitioning Congress.

And I -- we think the framers would have regarded those as petitions.

I don't think they would regard a beef with the Secretary of the Treasury as -- as -- so we would -- there's no--

Justice Ruth Bader Ginsburg: Mr. Schnapper, this is not -- if you're -- if you're talking about the practical significance, Myers in Connick was going around the office, collecting signatures.

She was taking a poll.

She was taking a poll and the poll was going to be presented to the employer.

That sounds much more petition-like than filing a grievance pursuant to a collective bargaining agreement.

So the -- the distinction between Connick, who was taking a poll -- why wasn't that a petition?

Maybe -- did she just put the wrong label on it?

If she called her case a petition case, it would have been all right?

Mr. Schnapper: --No.

No, Your Honor.

Our view, as I indicated to Justice Alito, is that a gripe within the office, whether you label it a petition or not, would not, except in maybe some extraordinary circumstance, constitute a petition.

But if I might respond, I think your question raises a second important linguistic point, which is the word 18th century.

We think of petitions as the things you see out on tables, along the street; people say, come on, sign my petition to do this, that, or the other thing.

That was not a common phenomena in the 18th century.

Petitions were ordinarily things from one individual or a couple of people.

There were some exceptions, but that was -- that was not the normal -- the normal practice.

In fact, the very idea that you could have large numbers of people signing something called a petition was much controverted at that time.

Justice Anthony Kennedy: Well, you're the expert in this area, but that -- that surprises me.

I thought it was quite common in the early 1800s for you to go to all your neighbors -- and the book "Quarreling About Slavery" explains this, where there were petitions signed by many of the constituents in the congressman's district.

Mr. Schnapper: There -- there were.

It came to be used that way as -- that is largely a--

Justice Anthony Kennedy: And there were scores, scores of -- of signatures on these petitions.

So that's like your card table.

Mr. Schnapper: --It is, but what I'm suggesting is that is a 19th and 20th-century phenomenon.

You see very little of that in the 18th century or earlier.

And I'd note, although -- I mean, I, I think that if that's done by private individuals and directed to the government, it would be protected by the Petition Clause.

I note, just to give you a sense of the history, that at the time that happened, its legitimacy was challenged, and the argument was made by the proponents of slavery in support of a gag order adopted by Congress that this was not really a legitimate petition.

The legitimate petition ought to be something about your personal problems; an abolitionist really had no business signing these things; it wasn't a personal grievance.

Now, I think that's wrong.

I think it's certainly not consistent with current case law.

But it illustrates how the position advanced by Petitioners stands on its head the historical evolution of the Petition Clause, which starts as about private matters, and only over time and after a good deal of struggle is it extended to things of broader concern and possibly a petition signed by people who don't have a personal stake in--

Justice Anthony Kennedy: That was the Calhoun position, not the John Q. Adams position.

Mr. Schnapper: --Right.

Right.

That's right.

Justice Ruth Bader Ginsburg: Mr. Schnapper, let's come to the century in which we are now living.

We have Title VII.

Title VII has this provision, an explicit provision against retaliation.

But suppose it didn't.

Suppose it just prohibited discrimination and it didn't have a retaliation clause.

It's the thrust of your arguments that the government employee would have a claim for retaliation, although someone in the private sector would not?

Mr. Schnapper: Exactly.

Exactly.

And here we part company with -- I think the government expressed the concern in its brief and perhaps at oral argument -- I guess it was Petitioner that made this point -- that there was something amiss about government employees having rights that private employees don't.

That distinction exists because the Bill of Rights and the -- and the other constitutional guarantees, with the exception of the Thirteenth Amendment and the right to travel in interstate commerce, those rights don't apply to private -- to people dealing with private employers.

That's just--

Chief Justice John G. Roberts: But -- but that's the basis of our law in this area is that when the government is actually the employer the rights of the individuals are somewhat different, and they're closer to the rights that private employees have.

So simply saying that these constitutional provisions apply against the government and therefore, you don't have to worry about the distinction between private employers and government employers doesn't seem to be -- me to be completely responsive to our precedent.

Mr. Schnapper: --And -- and we're not taking issue with the assertion of the government that the government as an employer has interests which are different than it -- it -- those it has just as a sovereign.

But that distinction has nothing to do with the distinction they propose in this case between matters of public concern and matters of only private concern.

Indeed, to the contrary.

To the extent that the government's -- the government's interests might be greater, surely a petition that deals with a matter of public importance is going to cause the government a lot more trouble than a purely private matter.

A lawsuit alleging systemic employment discrimination on the basis of religion or even an individual, if -- if Mr. Guarnieri had alleged and a court had found that he had been fired because he was Catholic, the ramifications politically and in terms of just -- the ramifications in terms of the workplace would have been far more serious than the--

Justice Elena Kagan: Mr. Schnapper, isn't the real question in these cases whether the employee is acting as a citizen or instead whether the employee is acting as an employee?

And in the speech cases, that distinction suggests a public concern threshold inquiry.

Maybe in the petition cases it suggests something else, but that that's really the question we should be asking is, is this employee acting as an employee or as a citizen?

Mr. Schnapper: --With all due respect, our view is it depends whether or not the -- the employee is acting as a petitioner within the meaning of the Petition Clause.

The petition Clause was not adopted, like the Free Speech Clause, to foster a vigorous public debate.

The purpose of the Petition Clause, as the Court said in Christopher v. Harbury, is to enable an individual to seek relief for a wrong.

And that has -- that's not the same as the -- the free speech interests that -- that might exist to engage as a citizen in a robust public debate.

Mr. Guarnieri didn't file his complaint in Federal court, for example, looking to the second petition, in the hopes of a robust debate between himself and Judge Caputo.

He -- he filed that complaint to get redress for an alleged violation of his constitutional rights.

So -- so the citizen versus employee distinction in -- in Connick is inapt here.

It's -- it's -- it's rooted in the purpose of the -- of the Free Speech Clause, which is protecting vigorous public debate on matters of public concern.

The Petition Clause is not about matters of public concern.

It's about -- about people's ability to seek redress.

It doesn't guarantee redress, but it protects the ability to ask for it.

The--

Justice Ruth Bader Ginsburg: You do, I think, recognize that it would be possible then to circumvent Connick if you could turn around and file a pleading and say: Now I have a petition, not just a grievance.

Mr. Schnapper: --Your Honor, we don't think that that is a serious problem for three reasons.

First of all, the Petitioners have in -- in highly expressive language described the decision in Filippo as one which would lead to an avalanche, tsunami, an overwhelming number of new lawsuits.

We pointed out in our reply brief that they had not adduced any evidence that any such thing had happened in the 17 years since San Filippo.

Their reply brief does not purport to have any information to -- to support that.

Chief Justice John G. Roberts: Well, but things will be a lot different if we give the sanction to your theory.

I think the idea that it hasn't happened in 17 years in the wake of San Filippo is a little bit -- it's not very compelling.

Mr. Schnapper: Well, I think your -- I think there are two -- two other reasons why this is not a -- a major concern.

The first one is it simply isn't the case that you could take any beef, write "Federal complaint" at the top of it and file it in Federal court and be protected.

Most internal gripes don't raise a colorable claim under Federal or State law, and this Court's Petition Clause cases make it clear that a petition, particularly a lawsuit, that doesn't have a reasonable basis simply isn't going to be protected.

It's also, to be frank, based on my contact with private petitioners, it's highly unrealistic to suggest that if an employee, government employee, took some gripe and went to a lawyer and said, let's file this in Federal court, I want to get it off my chest, to find a lawyer on a contingent fee basis that is going to do that.

If a chance case has no chance of success, you're not going to find a lawyer who will do it; and on a police officer's salary, you're certainly not going to be able to hire one.

Third--

Chief Justice John G. Roberts: Well, but the most likely solution when you have an employee grievance along with it is that some umbrella settlement -- I mean, the employer doesn't want to spend -- I mean, that's part of the reason our doctrine developed under the First Amendment.

The employer doesn't want to have to worry about spending time and money in court to resolve what is essentially an employee grievance.

Mr. Schnapper: --Few -- few private lawyers who aren't independently wealthy are going to take a baseless case on the theory that they're going to get some umbrella settlement.

It's just -- it simply doesn't happen.

It -- it -- and realistically, we don't really have a plausible account of why an employee would do this.

I mean, you're an employee, you're unhappy with the way you're being treated at work, you--

Justice Sonia Sotomayor: Counselor, your client won everything in his collective bargaining grievance.

He got his pay back, he got them to stop doing what they did, and he found a lawyer to file a constitutional claim.

So your suggestion that lawyers won't fight semi-chaotic adventures is realistic as well.

Mr. Schnapper: --Your Honor, this--

Justice Sonia Sotomayor: People get upset about how they're treated all of the time, and they find lawyers to file suits about that treatment.

Mr. Schnapper: --Your Honor, I can certainly tell you that people who are upset all the time call me ostensibly unable to find lawyers.

I mean, remember, the -- the fact that Mr. Guarnieri was able to find a lawyer to take this case doesn't prove that people can find lawyers to take baseless cases.

Mr. Guarnieri found a lawyer, she brought this case, she got past summary judgment, she took it to trial and she won.

This is a case that not only had a substantial basis, but on the facts, and this issue is no longer before us, she prevailed.

If the Court has no--

Justice Samuel Alito: Your submission is there are not very many -- throughout the whole country there are very few frivolous 1983 cases or employment cases, that's your point?

Mr. Schnapper: --No, they -- they -- certainly they happen, but the notion that this is going to unleash a flood of them seems to me unrealistic.

A particular institution like this where the theory of this is that the private -- the government employee reads Connick, realizes they can't write a letter to the boss with -- with their gripe, and undissatisfied with their ability to talk about it with friends and family and gripe with pals at the bar, decides that the only way they can get it off their chest is to have it be in a complaint in some Federal courthouse, where it would then probably be dismissed.

I think in the real world that's something that would make very little sense to an employee.

If the Court has no further questions--

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Palmore, you have a minute left.

REBUTTAL ARGUMENT OF JOSEPH R. PALMORE, ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

Mr. Palmore: Your Honor, it defies the imagination that the radical Republicans and the framers understood that the Petition Clause would constitutionalize public employee grievance, and as academic commentary that Respondent cites suggests, their -- Respondents long-centered view of the Petition Clause would call into question, sovereign immunity doctrine, parts of Rule 11, suggest a right to appeal and a right to judicial review whenever anyone has agreed to government action.

There is also a danger that it would constitutionalize the arbitration process whenever the government is a party.

If I can just answer one question.

Connick is focused not on where speech happens, as Respondent insists, but rather where its effects occur.

As this Court held in the City of San Diego v. Roe, employee speech completely outside of the workplace raises the same kind of concerns.

If there are no further questions, Petitioners will rest on their submissions.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Justice Kennedy: This case concerns the extent of protection that the Petition Clause of the First Amendment grants to public employees when they have a routine dispute with their government employer.

Petitions are a form of expression.Government employees who invoked the Petition Clause in most cases could also invoke the Speech Clause of the First Amendment.

Now in the Speech Clause case, to show that the employer interfered with protected rights, the employee, as a general rule, must show that his or her speech was on a matter of public concern.

Here, the issue is whether that test applies when the employee invokes the Petition Clause.

The Court of Appeals for the Third Circuit is held but the public concern test does not apply in those instances.

Charles Guarnieri, the respondent here, filed a union grievance challenging his termination as Chief of Police for the Borough of Duryea, the town of about 4,600 persons in Northeastern Pennsylvania.

An arbitrator ordered the respondent reinstated.

Upon his return, the counsel issued 11 directives instructing him in the performance of his duties.

For instance, one directive stated that the municipal building is a smoke-free building and that the police department is not exempt.

Respondent filed this lawsuit against the Borough and Borough Counsel and individual members of the counsel under 42 U.S.C. 1983, he claimed that his grievance was a petition protected by the Petition Clause and he alleged that the directives were unlawful retaliation.

And after the suit was filed, the counsel denied a request by respondent for overtime.

He amended the complaint to allege that his 1983 lawsuit was a petition and that the denial of overtime also constituted retaliation for his having filed the lawsuit.

The jury found in favor of respondent, defendants appealed on the ground that respondent's grievances and lawsuit did not address matters of public concern, but the Court of Appeals rejected that argument and it affirmed.

This Court now concludes that the judgment must be reversed.

The public concern test developed in Speech Clause cases, reconciles the employee's First Amendment right and the Government employer's legitimate interest in performing this mission.

The Government has a substantial interest in ensuring that all of these operations are efficient and effective, the Government interest that justify a cautious in restraining approach under the Speech Clause or justice relevant under the Petition Clause.

Petitions no less than speech can interfere with the effective and efficient operation of Government.

Adoption of a different rule for Petition Clause claims would provide a ready means for public employees to circumvent the protections of the public concern test.

Now, the Petition Clause undoubtedly does apply in the context of a personal grievance.

Petitions to the Government, nonetheless, assumed an added dimension when they seek to advance political, social or other ideas of interest to the community as a whole.

Public employees are members of the community most likely to have informed and definite opinions about a wide range of matters related directly or indirectly to their employment.Just as the public has the right to hear the views of public employees, the public has the right to the benefit of employees for participation in petitioning activity.

The framework used to govern Speech Clause claims by public employees when applied to the Petition Clause will protect both the interest of the Government and the First Amendment right.

Because the Court of Appeals did not find it necessary to apply this framework, there has been no determination as to how it would apply in the context of this case.

This Court need not consider that question in the first instance rather the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

Justice Thomas has filed an opinion concurring in the judgment.

Justice Scalia has filed an opinion concurring in the judgment impart and dissenting impart.