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UNITED STATES ET AL. v. NATIONAL TREASURY EMPLOYEES UNION ET AL.

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OCTOBER TERM, 1994

Syllabus

UNITED STATES ET AL. v. NATIONAL TREASURY EMPLOYEES UNION ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 93-1170. Argued November 8, 1994-Decided February 22,1995

Mter § 501(b) of the Ethics in Government Act of 1978 was amended to prohibit a Member of Congress, federal officer, or other Government employee from accepting an honorarium for making an appearance or speech or writing an article, respondents-including individual members of, and a union representing, a class composed of all Executive Branch employees below grade GS-16 who, but for § 501(b), would receive honoraria-filed a suit challenging the statute as an unconstitutional abridgment of their freedom of speech. The speeches and articles for which respondents had received honoraria in the past concerned matters such as religion, history, dance, and the environment; with few exceptions, neither their subjects nor the persons or groups paying for them had any connection with respondents' official duties. In granting respondents' motion for summary judgment, the District Court held § 501(b) unconstitutional insofar as it applies to Executive Branch employees and enjoined the Government from enforcing it against any such employee. The Court of Appeals affirmed, emphasizing, inter alia, that the Government's failure as to many respondents to identify some sort of nexus between the employee's job and either the expression's subject matter or the payor's character undercut its proffered concern about actual or apparent improprieties in the receipt of honoraria.

Held: Section 501(b) violates the First Amendment. Pp. 464-480.

(a) The honoraria ban imposes the kind of burden that abridges speech under the First Amendment. Where, as here, Government employees seek to exercise their right as citizens to comment on matters of public interest, and are not attempting simply to speak as employees upon personal matters, the Government must be able to satisfy a balancing test of the type set forth in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568, in order to maintain a statutory restriction on the employees' speech. See Civil Service Comm'n v. Letter Carriers, 413 U. S. 548, 564. However, because § 501(b) constitutes a wholesale deterrent to a broad category of expression by a massive number of potential speakers, the Government's burden here is even greater than it was in Pickering and its progeny, whichcralaw


455

usually involved individual disciplinary actions taken in response to particular government employees' actual speech. Specifically, the Government must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression's "necessary impact on the actual operation" of the Government, Pickering, 391 U. S., at 571. Although § 501(b) neither prohibits any speech nor discriminates among speakers based on the content or viewpoint of their messages, its prohibition on compensation unquestionably imposes a significant burden on respondents' expressive activity by inducing them to curtail their expression if they wish to continue their employment. Moreover, the ban imposes a far more significant burden on them than on the relatively small group of lawmakers whose past receipt of honoraria assertedly motivated its enactment. The large-scale disincentive to expression also imposes a significant burden on the public's right to read and hear what Government employees would otherwise have written and said. Pp. 464-470.

(b) The Government has failed to show how the interests it asserts to justify § 501(b) are served by applying the honoraria ban to respondents. Public Workers v. Mitchell, 330 U. S. 75, distinguished. Although the asserted concern that federal officers not misuse or appear to misuse power by accepting compensation for their unofficial and nonpolitical writing and speaking activities is undeniably powerful, the Government cites no evidence of misconduct related to honoraria by the vast rank and file of federal employees below grade GS-16. The limited evidence of actual or apparent impropriety by Members of Congress and highlevel executives cannot justify extension of the honoraria ban to that rank and file, an immense class of workers with negligible power to confer favors on those who might pay to hear them speak or to read their articles. Moreover, while operational efficiency is undoubtedly a vital governmental interest, several features of the text of the ban and of the pertinent regulations cast serious doubt on the Government's submission that Congress perceived honoraria as so threatening to the efficiency of the entire federal service as to render the ban a reasonable response to the threat. First, the total exemption of payments for "any series of appearances, speeches, or articles" unrelated to the employee's official duties or status from § 505(3)'s definition of "honorarium" undermines application of the ban to individual speeches and articles with no nexus to Government employment. Second, the definition's limitation of "honoraria" to payments for expressive activities, as opposed to other services that a Government employee might perform in his or her spare time, requires a justification far stronger than the mere speculationcralaw


456
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