CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 81-1251 Argued: November 8, 1982 --- Decided: April 20, 1983
JUSTICE WHITE delivered the opinion of the Court.
In Pickering v. Board of Education, 391 U.S. 563 (1968), we stated that a public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment. We also recognized that the State's interests as an employer in regulating the speech of its employees "differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Id. at 568. The problem, we thought, was arriving
at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.
Ibid. We return to this problem today and consider whether the First and Fourteenth Amendments prevent the discharge of a state employee for circulating a questionnaire concerning internal office affairs.
The respondent, Sheila Myers, was employed as an Assistant District Attorney in New Orleans for five and a half years. She served at the pleasure of petitioner Harry Connick, the District Attorney for Orleans Parish. During this period, Myers competently performed her responsibilities of trying criminal cases.
In the early part of October, 1980, Myers was informed that she would be transferred to prosecute cases in a different section of the criminal court. Myers was strongly opposed to the proposed transfer [n1] and expressed her view to several of her supervisors, including Connick. Despite her objections, on October 6, Myers was notified that she was being transferred. [p141] Myers again spoke with Dennis Waldron, one of the First Assistant District Attorneys, expressing her reluctance to accept the transfer. A number of other office matters were discussed, and Myers later testified that, in response to Waldron's suggestion that her concerns were not shared by others in the office, she informed him that she would do some research on the matter.
That night, Myers prepared a questionnaire soliciting the views of her fellow staff members concerning office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns. [n2] Early the following morning, Myers typed and copied the questionnaire. She also met with Connick, who urged her to accept the transfer. She said she would "consider" it. Connick then left the office. Myers then distributed the questionnaire to 15 Assistant District Attorneys. Shortly after noon, Dennis Waldron learned that Myers was distributing the survey. He immediately phoned Connick and informed him that Myers was creating a "mini-insurrection" within the office. Connick returned to the office and told Myers that she was being terminated because of her refusal to accept the transfer. She was also told that her distribution of the questionnaire was considered an act of insubordination. Connick particularly objected to the question which inquired whether employees "had confidence in and would rely on the word" of various superiors in the office, and to a question concerning pressure to work in political campaigns which he felt would be damaging if discovered by the press.
Myers filed suit under 42 U.S.C. § 1983 (1976 ed., Supp. V), contending that her employment was wrongfully terminated because she had exercised her constitutionally protected right of free speech. The District Court agreed, ordered Myers reinstated, and awarded backpay, damages, and [p142] attorney's fees. 507 F.Supp. 752 (ED La.1981). [n3] The District Court found that, although Connick informed Myers that she was being fired because of her refusal to accept a transfer, the facts showed that the questionnaire was the real reason for her termination. The court then proceeded to hold that Myers' questionnaire involved matters of public concern, and that the State had not "clearly demonstrated" that the survey "substantially interfered" with the operations of the District Attorney's office.
Connick appealed to the United States Court of Appeals for the Fifth Circuit, which affirmed on the basis of the District Court's opinion. 654 F.2d 719 (1981). Connick then sought review in this Court by way of certiorari, which we granted. 455 U.S. 999 (1982).
For at least 15 years, it has been settled that a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression. Keyishian v. Board of Regents, 385 U.S. 589, 605-606 (1967); Pickering v. Board of Education, 391 U.S. 563 (1968); Perry v. Sindermann, 408 U.S. 593, 597 (1972); Branti v. Finkel, 445 U.S. 507, 515-516 (1980). Our task, as we defined it in Pickering, is to seek
a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.
391 U.S. at 568. The District Court, and thus the Court of Appeals as well, misapplied our decision in Pickering, and consequently, in our view, erred in striking the balance for respondent. [p143]
The District Court got off on the wrong foot in this case by initially finding that,
[t]aken as a whole, the issues presented in the questionnaire relate to the effective functioning of the District Attorney's Office and are matters of public importance and concern.
507 F.Supp. at 758. Connick contends at the outset that no balancing of interests is required in this case, because Myers' questionnaire concerned only internal office matters, and that such speech is not upon a matter of "public concern," as the term was used in Pickering. Although we do not agree that Myers' communication in this case was wholly without First Amendment protection, there is much force to Connick's submission. The repeated emphasis in Pickering on the right of a public employee "as a citizen, in commenting upon matters of public concern," was not accidental. This language, reiterated in all of Pickering's progeny, [n4] reflects both the historical evolvement of the rights of public employees and the common-sense realization that government offices could not function if every employment decision became a constitutional matter. [n5]
For most of this century, the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment -- including those which restricted the exercise of constitutional rights. The classic formulation of this position was that of Justice Holmes, who, when sitting on the Supreme Judicial Court of Massachusetts, observed: "[A policeman] may have a constitutional [p144] right to talk politics, but he has no constitutional right to be a policeman." McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892). For many years, Holmes' epigram expressed this Court's law. Adler v. Board of Education, 342 U.S. 485 (1952); Garner v. Los Angeles Bd. of Public Works, 341 U.S. 716 (1951); Public Workers v. Mitchell, 330 U.S. 75 (1947); United States v. Wurzbach, 280 U.S. 396 (1930); Ex parte Curtis, 106 U.S. 371 (1882).
The Court cast new light on the matter in a series of cases arising from the widespread efforts in the 1950's and early 1960's to require public employees, particularly teachers, to swear oaths of loyalty to the State and reveal the groups with which they associated. In Wiemann v. Updegraff, 344 U.S. 183 (1952), the Court held that a State could not require its employees to establish their loyalty by extracting an oath denying past affiliation with Communists. In Cafeteria Workers v. McElroy, 367 U.S. 886 (1961), the Court recognized that the government could not deny employment because of previous membership in a particular party. See also Shelton v. Tucker, 364 U.S. 479, 490 (1960); Torcaso v. Watkins, 367 U.S. 488 (1961); Cramp v. Board of Public Instruction, 368 U.S. 278 (1961). By the time 364 U.S. 479, 490 (1960); Torcaso v. Watkins, 367 U.S. 488 (1961); Cramp v. Board of Public Instruction, 368 U.S. 278 (1961). By the time Sherbert v. Verner, 374 U.S. 398 (1963), was decided, it was already
too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.
Id. at 404. It was therefore no surprise when, in Keyishian v. Board of Regents, supra, the Court invalidated New York statutes barring employment on the basis of membership in "subversive" organizations, observing that the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, had been uniformly rejected. Id. at 605-606.
In all of these cases, the precedents in which Pickering is rooted, the invalidated statutes and actions sought to suppress the rights of public employees to participate in public [p145] affairs. The issue was whether government employees could be prevented or "chilled" by the fear of discharge from joining political parties and other associations that certain public officials might find "subversive." The explanation for the Constitution's special concern with threats to the right of citizens to participate in political affairs is no mystery. The First Amendment "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U.S. 476, 484 (1957); New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964). "[S]peech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). Accordingly, the Court has frequently reaffirmed that speech on public issues occupies the "‘highest rung of the heirarchy of First Amendment values,'" and is entitled to special protection. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982); Carey v. Brown, 447 U.S. 455, 467 (1980).
Pickering v. Board of Education, supra, followed from this understanding of the First Amendment. In Pickering, the Court held impermissible under the First Amendment the dismissal of a high school teacher for openly criticizing the Board of Education on its allocation of school funds between athletics and education and its methods of informing taxpayers about the need for additional revenue. Pickering's subject was "a matter of legitimate public concern" upon which "free and open debate is vital to informed decisionmaking by the electorate." 391 U.S. at 571-572.
Our cases following Pickering also involved safeguarding speech on matters of public concern. The controversy in Perry v. Sindermann, 408 U.S. 593 (1972), arose from the failure to rehire a teacher in the state college system who had testified before committees of the Texas Legislature and had become involved in public disagreement over whether the college should be elevated to 4-year status -- a change opposed by the Regents. In Mt. Healthy City Board of Ed. v. [p146] Doyle, 429 U.S. 274 (1977), a public school teacher was not rehired because, allegedly, he had relayed to a radio .station the substance of a memorandum relating to teacher dress and appearance that the school principal had circulated to various teachers. The memorandum was apparently prompted by the view of some in the administration that there was a relationship between teacher appearance and public support for bond issues, and indeed, the radio station promptly announced the adoption of the dress code as a news item. Most recently, in Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979), we held that First Amendment protection applies when a public employee arranges to communicate privately with his employer, rather than to express his views publicly. Although the subject matter of Mrs. Givhan's statements were not the issue before the Court, it is clear that her statements concerning the School District's allegedly racially discriminatory policies involved a matter of public concern.
Pickering, its antecedents, and its progeny lead us to conclude that, if Myers' questionnaire cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge. [n6] When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Perhaps the government employer's dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable. [p147] Board of Regents v. Roth, 408 U.S. 564 (1972); Perry v. Sindermann, supra; Bishop v. Wood, 426 U.S. 341, 349-350 (1976).
We do not suggest, however, that Myers' speech, even if not touching upon a matter of public concern, is totally beyond the protection of the First Amendment.
[T]he First Amendment does not protect speech and assembly only to the extent it can be characterized as political. "Great secular causes, with smaller ones, are guarded."
Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 223 (1967), quoting Thomas v. Collins, 323 U.S. 516, 531 (1945). We in no sense suggest that speech on private matters falls into one of the narrow and well-defined classes of expression which carries so little social value, such as obscenity, that the State can prohibit and punish such expression by all persons in its jurisdiction. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Roth v. United States, supra; New York v. Ferber, 458 U.S. 747 (1982). For example, an employee's false criticism of his employer on grounds not of public concern may be cause for his discharge, but would be entitled to the same protection in a libel action accorded an identical statement made by a man on the street. We hold only that, when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, 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. Cf. Bishop v. Wood, supra, at 349-350. Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government; this does not require a grant of immunity for employee grievances not afforded by the First Amendment to those who do not work for the State.
Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context [p148] of a given statement, as revealed by the whole record. [n7] In this case, with but one exception, the questions posed by Myers to her coworkers do not fall under the rubric of matters of "public concern." We view the questions pertaining to the confidence and trust that Myers' coworkers possess in various supervisors, the level of office morale, and the need for a grievance committee as mere extensions of Myers' dispute over her transfer to another section of the criminal court. Unlike the dissent, post at 163, we do not believe these questions are of public import in evaluating the performance of the District Attorney as an elected official. Myers did not seek to inform the public that the District Attorney's Office was not discharging its governmental responsibilities in the investigation and prosecution of criminal cases. Nor did Myers seek to bring to light actual or potential wrongdoing or breach of public trust on the part of Connick and others. Indeed, the questionnaire, if released to the public, would convey no information at all other than the fact that a single employee is upset with the status quo. While discipline and morale in the workplace are related to an agency's efficient performance of its duties, the focus of Myers' questions is not to evaluate the performance of the office, but rather to gather ammunition for another round of controversy with her superiors. These questions reflect one employee's dissatisfaction with a transfer and an attempt to turn that displeasure into a cause celebre. [n8] [p149]
To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark -- and certainly every criticism directed at a public official -- would plant the seed of a constitutional case. While, as a matter of good judgment, public officials should be receptive to constructive criticism offered by their employees, the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.
One question in Myers' questionnaire, however, does touch upon a matter of public concern. Question 11 inquires if assistant district attorneys "ever feel pressured to work in political campaigns on behalf of office supported candidates." We have recently noted that official pressure upon employees to work for political candidates not of the worker's own choice constitutes a coercion of belief in violation of fundamental constitutional rights. Branti v. Finkel, 445 U.S. at 515-516; Elrod v. Burns, 427 U.S. 347 (1976). In addition, there is a demonstrated interest in this country that government service should depend upon meritorious performance, rather than political service. CSC v. Letter Carriers, 413 U.S. 548 (1973); Public Workers v. Mitchell, 330 U.S. 75 (1947). Given this history, we believe it apparent that the issue of whether assistant district attorneys are pressured to work in political campaigns is a matter of interest to the community upon which it is essential that public employees be able to speak out freely without fear of retaliatory dismissal.
Because one of the questions in Myers' survey touched upon a matter of public concern and contributed to her discharge, we must determine whether Connick was justified in discharging Myers. Here the District Court again erred in imposing an unduly onerous burden on the State to justify [p150] Myers' discharge. The District Court viewed the issue of whether Myers' speech was upon a matter of "public concern" as a threshold inquiry, after which it became the government's burden to "clearly demonstrate" that the speech involved "substantially interfered" with official responsibilities. Yet Pickering unmistakably states, and respondent agrees, [n9] that the State's burden in justifying a particular discharge varies depending upon the nature of the employee's expression. Although such particularized balancing is difficult, the courts must reach the most appropriate possible balance of the competing interests. [n10]
The Pickering balance requires full consideration of the government's interest in the effective and efficient fulfillment of its responsibilities to the public. One hundred years ago, the Court noted the government's legitimate purpose in
promot[ing] [p151] efficiency and integrity in the discharge of official duties, and [in] maintain[ing] proper discipline in the public service.
Ex parte Curtis, 106 U.S. at 373. As JUSTICE POWELL explained in his separate opinion in Arnett v. Kennedy, 416 U.S. 134, 168 (1974):
To this end, the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation, and to do so with dispatch. Prolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect discipline and morale in the work place, foster disharmony, and ultimately impair the efficiency of an office or agency.
We agree with the District Court that there is no demonstration here that the questionnaire impeded Myers' ability to perform her responsibilities. The District Court was also correct to recognize that
it is important to the efficient and successful operation of the District Attorney's office for Assistants to maintain close working relationships with their superiors.
507 F.Supp. at 759. Connick's judgment, and apparently also that of his first assistant Dennis Waldron, who characterized Myers' actions as causing a "mini-insurrection," was that Myers' questionnaire was an act of insubordination which interfered with working relationships. [n11] When close working relationships are essential to fulfilling public [p152] responsibilities, a wide degree of deference to the employer's judgment is appropriate. Furthermore, we do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action. [n12] We caution that a stronger showing may be necessary if the employee's speech more substantially involved matters of public concern.
The District Court rejected Connick's position because,
[u]nlike a statement of fact which might be deemed critical of one's superiors, [Myers'] questionnaire was not a statement of fact, but the presentation and solicitation of ideas and opinions,
which are entitled to greater constitutional protection because, "‘under the First Amendment, there is no such thing as a false idea.'" Ibid. This approach, while perhaps relevant in weighing the value of Myers' speech, bears no logical relationship to the issue of whether the questionnaire undermined office relationships. Questions, no less than forcefully stated opinions and facts, carry messages and it requires no unusual insight to conclude that the purpose, if not the likely result, of the questionnaire is to seek to precipitate a vote of no confidence in Connick and his supervisors. Thus, Question 10, which asked whether or not the Assistants had confidence in and relied on the word of five named supervisors, is a statement that carries the clear potential for undermining office relations.
Also relevant is the manner, time, and place in which the questionnaire was distributed. As noted in Givhan v. Western Line Consolidated School District, 439 U.S. at 415, n. 4:
Private expression . . . may in some situations bring additional [p153] factors to the Pickering calculus. When a government employee personally confronts his immediate superior, the employing agency's institutional efficiency may be threatened not only by the content of the employee's message, but also by the manner, time, and place in which it is delivered.
Here the questionnaire was prepared and distributed at the office; the manner of distribution required not only Myers to leave her work, but others to do the same in order that the questionnaire be completed. [n13] Although some latitude in when official work is performed is to be allowed when professional employees are involved, and Myers did not violate announced office policy, [n14] the fact that Myers, unlike Pickering, exercised her rights to speech at the office supports Connick's fears that the functioning of his office was endangered.
Finally, the context in which the dispute arose is also significant. This is not a case where an employee, out of purely academic interest, circulated a questionnaire so as to obtain useful research. Myers acknowledges that it is no coincidence that the questionnaire followed upon the heels of the transfer notice. When employee speech concerning office policy arises from an employment dispute concerning the very application of that policy to the speaker, additional weight must be given to the supervisor's view that the employee has threatened the authority of the employer to run the office. Although we accept the District Court's factual finding that Myers' reluctance to accede to the transfer order was not a sufficient cause in itself for her dismissal, and thus does not constitute a sufficient defense under Mt. Healthy [p154] City Board of Ed. v. Doyle, 429 U.S. 274 (1977), this does not render irrelevant the fact that the questionnaire emerged after a persistent dispute between Myers and Connick and his deputies over office transfer policy.
Myers' questionnaire touched upon matters of public concern in only a most limited sense; her survey, in our view, is most accurately characterized as an employee grievance concerning internal office policy. The limited First Amendment interest involved here does not require that Connick tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships. Myers' discharge therefore did not offend the First Amendment. We reiterate, however, the caveat we expressed in Pickering, 391 U.S. at 569:
Because of the enormous variety of fact situations in which critical statements by . . . public employees may be thought by their superiors . . . to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged.
Our holding today is grounded in our longstanding recognition that the First Amendment's primary aim is the full protection of speech upon issues of public concern, as well as the practical realities involved in the administration of a government office. Although today the balance is struck for the government, this is no defeat for the First Amendment. For it would indeed be a Pyrrhic victory for the great principles of free expression if the Amendment's safeguarding of a public employee's right, as a citizen, to participate in discussions concerning public affairs were confused with the attempt to constitutionalize the employee grievance that we see presented here. The judgment of the Court of Appeals is
APPENDIX TO OPINION OF THE COURT
Questionnaire distributed by respondent on October 7, 1980.PLAINTIFF's EXHIBIT 2, App.191
PLEASE TAKE THE FEW MINUTES IT WILL REQUIRE TO FILL THIS OUT. YOU CAN FREELY EXPRESS YOUR OPINION WITH ANONYMITY GUARANTEED.
1. How long have you been in the Office?
2. Were you moved as a result of the recent transfers?
3. Were the transfers as they effected [sic] you discussed with you by any superior prior to the notice of them being posted?
4. Do you think as a matter of policy, they should have been?
5. From your experience, do you feel office procedure regarding transfers has been fair?
6. Do you believe there is a rumor mill active in the office?
7. If so, how do you think it effects [sic] overall working performance of A.D.A. personnel?
8. If so, how do you think it effects [sic] office morale?
9. Do you generally first learn of office changes and developments through rumor?
10. Do you have confidence in and would you rely on the word of:
11. Do you ever feel pressured to work in political campaigns on behalf of office supported candidates?
12. Do you feel a grievance committee would be a worthwhile addition to the office structure? [p156]
14. Please feel free to express any comments or feelings you have.
THANK YOU FOR YOUR COOPERATION IN THIS SURVEY.
1. Myers' opposition was at least partially attributable to her concern that a conflict of interest would have been created by the transfer because of her participation in a counseling program for convicted defendants released on probation in the section of the criminal court to which she was to be assigned.
2. The questionnaire is reproduced as an Appendix to this opinion.
3. Petitioner has also objected to the assessment of damages as being in violation of the Eleventh Amendment and to the award of attorney's fees. Because of our disposition of the case, we do not reach these questions.
4. See Perry v. Sindermann, 408 U.S. 593, 598 (1972); Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 284 (1977); Givhan v. Western Line Consolidated School District, 439 U.S. 410, 414 (1979).
5. The question of whether expression is of a kind that is of legitimate concern to the public is also the standard in determining whether a common law action for invasion of privacy is present. See Restatement (Second) of Torts § 652D (1977). See also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) (action for invasion of privacy cannot be maintained when the subject matter of the publicity is matter of public record); Time, Inc. v. Hill, 385 U.S. 374, 387-388 (1967).
6. See Clark v. Holmes, 474 F.2d 928 (CA7 1972), cert. denied, 411 U.S. 972 (1973); Schmidt v. Fremont County School Dist., 558 F.2d 982, 984 (CA10 1977).
7. The inquiry into the protected status of speech is one of law, not fact. See n. 10, infra.
8. This is not a case like Givhan, where an employee speaks out as a citizen on a matter of general concern, not tied to a personal employment dispute, but arranges to do so privately. Mrs. Givhan's right to protest racial discrimination -- a matter inherently of public concern -- is not forfeited by her choice of a private forum. 439 U.S. at 415-416. Here, however, a questionnaire not otherwise of public concern does not attain that status because its subject matter could, in different circumstances, have been the topic of a communication to the public that might be of general interest. The dissent's analysis of whether discussions of office morale and discipline could be matters of public concern is beside the point -- it does not answer whether this questionnaire is such speech.
9. See Brief for Respondent 9 ("These factors, including the degree of the 'importance' of plaintiff's speech, were proper considerations to be weighed in the Pickering balance"); Tr. of Oral Arg. 30 (counsel for respondent) ("I certainly would not disagree that the content of the questionnaire, whether it affects a matter of great public concern or only a very narrow internal matter, is a relevant circumstance to be weighed in the Pickering analysis").
The Constitution has imposed upon this Court final authority to determine the meaning and application of those words of that instrument which require interpretation to resolve judicial issues. With that responsibility, we are compelled to examine for ourselves the statements in issue and the circumstances under which they [are] made to see whether or not they . . . are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.
Pennekamp v. Florida, 328 U.S. 331, 335 (1946) (footnote omitted). Because of this obligation, we cannot "avoid making an independent constitutional judgment on the facts of the case." Jacobellis v. Ohio, 378 U.S. 184, 190 (1964) (opinion of BRENNAN, J.). See Edwards v. South Carolina, 372 U.S. 229, 235 (1963); 378 U.S. 184, 190 (1964) (opinion of BRENNAN, J.). See Edwards v. South Carolina, 372 U.S. 229, 235 (1963); New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964); 376 U.S. 254, 285 (1964); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 915-916, n. 50 (1982).
11. Waldron testified that from what he had learned of the events on October 7, Myers
was trying to stir up other people not to accept the changes [transfers] that had been made on the memorandum and that were to be implemented.
App. 167. In his view, the questionnaire was a "final act of defiance" and that, as a result of Myers' action, "there were going to be some severe problems about the changes." Ibid. Connick testified that he reached a similar conclusion after conducting his own investigation.
After I satisfied myself that not only wasn't she accepting the transfer, but that she was affirmatively opposing it and disrupting the routine of the office by this questionnaire. I called her in . . . [and dismissed her].
Id. at 130.
12. Cf. Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 52, n. 12 (1983) (proof of future disruption not necessary to justify denial of access to nonpublic forum on grounds that the proposed use may disrupt the property's intended function); Greer v. Spock, 424 U.S. 828 (1976) (same).
13. The record indicates that some, though not all, of the copies of the questionnaire were distributed during lunch. Employee speech which transpires entirely on the employee's own time, and in nonwork areas of the office, bring different factors into the Pickering calculus, and might lead to a different conclusion. Cf. NLRB v. Magnavox Co., 415 U.S. 322 (1974).
14. The violation of such a rule would strengthen Connick's position. See Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. at 284.