The Problem with the WSJ's Appeal to Scalia

Published January 24th, 2014 -  - 01.24.1410


The Wall Street Journal editorial page is concerned that Justice Scalia might provide a fifth vote to affirm the seventh circuit’s decision in Harris v. Quinn.  The Journal believes that there is a “first constitutional principle” at stake in Harris and that “such a stalwart supporter of the First Amendment as Justice Scalia” should not abandon that principle.

The problem with the Journal’s analysis is that Justice Scalia – as he suggested with his questions at oral argument – seems inclined to defend the First Amendment as the Court has long construed it.  That is, the Justice appears committed to the same First Amendment principle that the Court consistently adheres to in cases involving public employment and public employee speech.  In fact, this is a First Amendment principle that the Journal has itself vigorously defended in the past.

The principle is the one we outlined prior to oral argument.  The principle is, as the Court put it in Garcetti, that “[w]hen a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.”  And, thus, “the government as employer indeed has far broader powers than does the government as sovereign.”

When the Court decided Garcetti, and declined to uphold the public employee’s speech claim there, the Journal’s editorial page strongly approved.  Here’s an excerpt from their June 3, 2006 editorial on Garcetti, titled “Court Sense”:

Writing for a majority that included new Justice Samuel Alito and Chief Justice John Roberts, Justice Anthony Kennedy noted that the Ninth Circuit’s ruling [finding First Amendment protection for the public employee’s speech] would have stripped government officials of the power to run even a marginally efficient shop.  Moreover, it ‘would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business.’

Justice David Souter seemed to endorse precisely this kind of systematic judicial intrusion in his dissent. But as Justice Kennedy noted, this would represent another expansion of judicial power into the operations of state government or the federal executive branch, and would be ‘inconsistent with sound principles of federalism and the separation of powers.’ What’s amazing is that four [dissenting] Supreme Court Justices could endorse this idea, but then again judicial ascendancy is one of the animating principles of modern liberalism.

The same First Amendment applies to public employee speech whether the public employees are union or nonunion.  And, so, whether the employees are union or nonunion, their speech is entitled to the same kind of circumscribed First Amendment protection that the Court routinely affords public employees.  This is another First Amendment principle Justice Scalia was urging at oral argument, and the following exchange with Petitioner’s counsel is worth quoting in full:

JUSTICE SCALIA: Suppose you have a policeman who — who is dissatisfied with his wages. So he makes an appointment with the commissioner, police commissioner, and he goes in and grouses about his wages. He does this, you know, 10 or 11 times. And the commissioner finally is fed up and tells his secretary, I don’t — I don’t want to see this man again. Has he violated the Constitution?

MR. MESSENGER: No.

JUSTICE SCALIA: He is prevented a petition for a redress of grievances?

MR. MESSENGER: No, because in that — with an individual speaking, it’s, sir, a matter of private or internal proprietary matter that under this Court’s precedence don’t rise to a matter of public concern. However, if you had an organization petitioning a — a police district for wages across the board for police officers, then that is a matter of public concern and would violate the First –

JUSTICE SCALIA: I really don’t understand that. When — when you — so what if it’s 10 policemen who do this? It’s still not a matter of public concern? Does it have to be the whole police force?

MR. MESSENGER: The line would be once you have the collective, it would be start to become a matter of public concern. It’d be the public concern test.

JUSTICE SCALIA: It seems to me it’s always a matter of public concern, whether you’re going to raise the salaries of policemen, whether it’s an individual policeman asking for that or — or a — a combination of policemen or a union. It’s a always a matter of public concern, isn’t it?

MR. MESSENGER: And if it is, then I submit that it’s unconstitutional for -­

JUSTICE SCALIA: Okay. To not — not give this guy an appointment for the 12th time.

MR. MESSENGER: No. The police just -­ chief can certainly shut his door, but it would be unconstitutional as to force -­

JUSTICE SCALIA: Well, how can he shut his door if he has a right to petition, a constitutional right to petition for the redress of grievances? His grievance is he’s not being paid enough.

MR. MESSENGER: But in that case under our public concern test, which goes within the Pickering line, that that individual grievance would not rise to a First Amendment petition.

JUSTICE SCALIA: But it’s the same grievance if the union had presented it.

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