Parties: Arnett v. Kennedy
Date: 1974-04-16
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Paragraph: 141 - Appellee is in my view being penalized by the Federal Government for exercising his right to speak out. The excuse or pretense is an Act of Congress and an agency's regulations promulgated under it in the teeth of the First Amendment: 'Congress shall make no law . . . abridging the freedom of speech, or of the press . . ..' Losing one's job with the Federal Government because of one's discussion of an issue in the public domain is certainly an abridgment of speech.
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Paragraph: 139 - There is more than employment and a job at issue in this case. The stake of the federal employee is not only in a livelihood, but in his right to speak guaranteed by the First Amendment. He is charged with having stated that his superior and the superior's assistant had attempted to bribe a representative of a community action organization with whom the agency (OEO) had dealings. He is charged with having stated that those men offered a bribe of $100,000 in OEO funds to that organization if its representative would sign a statement against appellee and another OEO employee. This statement in my view was on a subject in the public domain. We all know merely by living in Washington, D.C., the storms that have swept through that agency and its branches. It has dealt with inflammatory problems in the solution of which inflammatory utterances are often made. I realize that it is the tradition of the Court to 'balance' the right of free speech against other governmental interests and to sustain the First Amendment right only when the Court deems that in a given situation its importance outweighs competing interests.
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Paragraph: 191 - The importance of Government employees' being assured of their right to freely comment on the conduct of Government, to inform the public of abuses of power and of the misconduct of their superiors, must be self-evident in these times. In Pickering, this Court specifically upheld the right of a public employee to criticize the conduct of his superiors. Id., at 573 574, 88 S.Ct. at 1737—1738. In fact, it appears that one of the primary purposes of the LloydLa Follette Act was to protect such criticism from official retribution.
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Paragraph: 194 - The 'efficiency of the service' standard would appear to bring within its reach, as permissible grounds for dismissal, even truthful criticism of an agency that in any way tends to disrupt its operation. One can be sure, for example, that the young man's criticism in Senator La Follette's example disrupted the operation of the Chicago Post Office. It seems clear that the standard could be construed to punish such protected speech.
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Paragraph: 198 - Employees are likely to limit their behavior to that which is unquestionably safe, for N84* 'the threat of dismissal from public employment is . . . a potent means of inhibiting speech.' Pickering, 391 U.S., at 574, 88 S.Ct., at 1737. The dismissal standard hangs over their heads like a sword of Damocles, threatening them with dismissal for any speech that might impair the 'efficiency of the service.' That this Court will ultimately vindicate an employee if his speech is constitutionally protected is of little consequence—for the value of a sword of Damocles is that it hangs—not that it drops. For every employee who risks his job by testing the limits of the statute, many more will choose the cautious path and not speak at all.
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Paragraph: 57 - Since Congress when it enacted the Lloyd-La Follette Act did so with the intention of conferring job protection rights on federal employees which they had not previously had, it obviously did not intend to authorize discharge under the Act's removal standard for speech which is constitutionally protected. The Act proscribes only that public speech which improperly damages and impairs the reputation and efficiency of the employing agency, and it thus imposes no greater controls on the behavior of federal employees than are necessary for the protection of the Government as an employer. Indeed the Act is not directed at speech as such, but at employee behavior, including speech, which is detrimental to the efficiency of the employing agency. We hold that the language 'such cause as will promote the efficiency of the service' in the Act excludes constitutionally protected speech, and that the statute is therefore not overbroad.
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