The Petition Clause Gets No Love

In last month’s decision in Borough of Duryea v. Guarnieri, the Supreme Court considered the relatively rare claim alleging a violation of the First Amendment’s petition clause, which protects “the right of the people . . . to petition the government for a redress of grievances.” Rather than interpret the petition clause to offer protections independent of those under the free speech clause, Justice Kennedy’s majority opinion instead conflated the two clauses in a way that deprives public employees of meaningful First Amendment rights. Interestingly, Justice Scalia’s partial dissent offers a more promising approach to protecting public employees from retaliation while recognizing governmental employers’ legitimate efficiency concerns.

The plaintiff there had filed a union grievance successfully challenging his firing as the borough’s police chief. Upon the chief’s reinstatement, the borough’s council imposed a number of directives constraining his authority in a variety of ways. Chief Guarnieri then filed suit, claiming that the council did so to retaliate against him for filing a grievance, and thus violated the petition clause. While that suit was pending, the council denied his request for $338 in overtime pay (the Department of Labor later found that he was entitled to the overtime); the chief then amended his original complaint to allege that that denial came in retaliation for his lawsuit and thus also violated his petition clause rights.

Chief Guarnieri’s disputes with the council did not appear to invoke broader matters of interest to the general public (as might have been the case, for example, had he filed charges of official corruption), and instead involved private grievances about the borough’s handling of personnel matters. Because the Supreme Court has long held that the free speech clause protects public employees’ speech only on matters of public, rather than private, concern (so long as the value of the employee’s speech outweighs any detrimental impact on the government’s efficient workplace operations — and even then only when the employee’s speech is not pursuant to her official duties), any free speech clause claim would have likely failed. Guarnieri relied instead on the petition clause.

At issue before the Supreme Court was whether the test for assessing public employees’ petition clause claims should precisely mirror that for assessing their claims under the free speech clause. In other words, should the petition clause be interpreted to protect only public employee petitions that relate to a matter of public concern (and in which the public interest in the speech outweighs the governmental employer’s interest in order and discipline), or are there any circumstances under which the petition clause protects public employees from retaliation when they submit petitions on matters of private concern?

Justice Kennedy’s majority opinion concluded that governmental employers’ managerial interests require that public employees’ rights under the two clauses be equally limited, and thus that government’s allegedly retaliatory actions against an employee do not support a petition clause claim unless the employee’s petition related to a matter of public concern: “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. . . . Government must have authority, in appropriate circumstances, to restrain employees who use petitions to frustrate progress towards the ends they have been hired to achieve.” Rather than engaging in any examination of whether Chief Guarnieri’s petitions actually undermined effective governmental operations in any way, however, the majority simply applied a bright-line rule to deny protection altogether to public employees’ petitions that involve private grievances.

I can’t say that I was terribly surprised by this decision, as it parallels the Court’s extremely limited understanding of public employees’ free speech clause rights — which I’ve criticized at length elsewhere as permitting government officials to suppress public employees’ whistleblowing and other on-the-job communications that would otherwise enhance government accountability. Perhaps more surprising, however, was Justice Scalia’s partial dissent, in which he proposed a test considerably more protective of public employees’ petition clause rights. More specifically, he insisted that separate analyses should apply to free speech and petition clause claims in light of the petition right’s longstanding history and tradition (starting with colonial assemblies, early state legislatures, and the first Congress) as an opportunity for response and resolution of personal, private grievances against the government. In his words: “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. . . . ”

In rebutting Justice Kennedy’s concern that separate First Amendment tests for separate First Amendment clauses would unwisely add difficulty to constitutional compliance, Justice Scalia observed: “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.” Justice Scalia then proposed a petition clause test that focuses not on the content of the petition (as a matter of public or private concern) but instead on the petition’s governmental target (the government as sovereign or as employer): “[W]e 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 petitioner’s employer, rather than its capacity as their sovereign. . . The criterion I suggest would largely resolve the legitimate practical concerns identified by the Court, while recognizing and giving effect to the difference between the Speech and Petition Clauses.”

Applying this rule to Chief Guarnieri’s two petitions (the union grievance and the federal lawsuit), Justice Scalia would have found the union grievance unprotected from retaliation under the petition clause because it was directed to the government in its capacity as the Chief’s employer. But Justice Scalia would have held that the petition clause protected Chief Guarnieri’s federal lawsuit from governmental retaliation (assuming for the moment that a lawsuit is a petition for purposes of the Petition Clause – an issue that Justice Scalia separately contests but which the parties did not litigate), because that petition was directed to the government as sovereign rather than as employer (i.e., the Chief was not an employee of the federal government, much less the federal courts). Given the petition clause’s purpose to ensure the government’s responsiveness to aggrieved citizens, Justice Scalia’s approach strikes me as a more promising approach to promoting key First Amendment values in facilitating government accountability while recognizing governmental employers’ legitimate concerns about potential disruption.

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2 Responses

  1. Howard Wasserman says:

    Although Scalia’s distinction is not historically justified. In 1791, lots of people worked for state and local governments and they routinely made petitions.

  2. Joe says:

    Taken as a whole, I have my doubts Scalia’s approach would be better. His “litigation isn’t petition” principle isn’t promising on that front. As to the specific case, Scalia seems to give the litigant faint hope — “well, I think the case rather weak, but we can’t simply dismiss it” seems to be a correct summary.