1 (Slip Opin i o n) OCTOBER T ERM, 20 10
Sy llabu s

N O TE : Wh er e it i s feas ibl e , a s y llab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s y ll abu s con s titu tes n o p a rt of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r
. Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

## SUPREME CO URT O FTHE UNI TED STATES

Sy llabu s
BOR O U G H OF DURY EA, PE NN SYLV ANIA , ET AL

. v
. G UAR N I ER I

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 09–1 47 6. Ar g u ed M a rc h22, 2011—Dec i ded Ju n e 20, 201 1 Afterpeti tionerbor o ugh fired r e spon dent Guarnieri as its po lice chief,

he filed a union grieva nce th a tled to his reins t a t ement. When th e b o rough cou n c il la t e r iss u ed direct ives instructing Guarnieri how to per f or m h i s du ties, h efiled a sec o n dgr ievan c e, an d an arbitr atoror
der e d that so me of the dir e c t iv es be m o d i f i e do rw i t h d r a w n
. G u a r n i

eri then filed this suit under42 U. S. C. §198 3, allegi n g that the di

rect ives werei s s u ed in ret a lia t i on for the fi ling of his first grievance, thereby violating his First Amendment “r ight .

. . to petition the Gov

ernment for a redress of grievances ”; he lateramended his c o mplain t to al leg eth at th e c o u n c il als ov i olat edthe Petition Claus ebydeny ing his r e quest fo rov er time pa yin r e taliat i o nforhis hav i ngfiled the §1 9 8 3 s u it

. The Dis t rictCourtins t ruct ed t h e j u ry, inter alia, that th e suit and the gr iev a nc es were c o nstitution allypr otec ted ac tiv i ty , and t h e j u ry fo un d for Gua r nieri. Affirm ing t h e com p ens a t o ry da m a ges awar d, th e Th ir d Cir c u itheld that a publi cemployee who has peti

tioned the g o ver n ment thr o ugh a fo rm a lm e cha n is ms u ch a s t h e fil

ing of ala ws uitor grieva nc e is pr otected under the Petition Cl ause fr om r e talia tio nforthat ac ti v i ty , ev en if the petition c o nc erns a ma t

ter of solely private concern. In soruling, th e court rejected the view of every other Circuit to have cons ideredthe issue that, to be pro

tec t ed, the petition must add r ess a matter of public conce r n. Held: A g o v e rnment employ er ’ s alleg e dly r e talia tor yac tions ag ainst a n

employee do not give rise to liab ility under the Petition C l ause unless the employee’s petition rel a tes to a matter of public c o ncern. The Third Circuit’s conclusion t h at the pu blic concern test does notlim it pu blicemploy ees’ PetitionC l au se c l aim s is in c o rr ec t. Pp. 4–19.

(a) A public employee suing his employer under the Fi rst Amend

-2 BOROUGH OF DURYEA v. GUARNIE RI
Sy llabu s ment’ s Speec hClau se mus t show thathe spoke as a citiz e n on a mat

ter of public concern. Connickv. Mye rs , 461 U. S. 13 8, 147. Ev en where the employee makes that showin g, howeve r, cou r t s b a l a n ce his employee’s right to engage i nspeec h ag ai nst the g o v e r n ment’ s inter

est in promoting theefficiency ande ffectiveness of the p u blic services it performs through its e m ployees. Pick erin g

v. Board of Ed. of Township High School Di st. 205, Will Cty. , 391 U. S. 5 63, 5 68. Al

thoughc a ses migh t ar ise in whic h special Petition Clau se concerns wou l d r e qu ir e a di stin c tan al y s is, public e m ployees’ retaliation claims do notca ll for t h is divergence. The clo s e connect ionb e t w een t h e rights of speech and petition has le d Cour ts of Appe als o t herthan the Third Circuit t oapply the pu blic co ncern test to publ ic employees’ Pe

tition Clause c l aims. This appr oac h is j u stified by th e subs tanti a l
c o mmon gr ound in the defi nition and delineation of these rights. Pp. 4–8.

(b) The substantial government in ter e sts th a t ju stifya c a u t iou s and restrained approach to protec ting p ublic employees’ speech are ju st as r e lev a n tinPeti tionClau se c a se s. A peti tion , n oless th an speech, can interfere with governme nt’s efficient and ef fective opera

tion by , e.g., seekingr e sults that“c ontr avene governmental po licie s or impair the proper perfo r manc e of gove rnmental functions,” Gar

cetti v. Ceballos, 547 U. S. 410, 4 19. A p e titiont a kin gth e for mof a lawsuit ag a i ns t the g o v e r n m e nt empl oyer may be particularly disrup

tive, cons umi n g pub lic offic i a l s ’ ti me andattention, bur d eningthei r ex er c i se of legi tima te author ity , an d blu r r i n gth e lin es of ac c o u n t abil

ity between th em and the p u blic. Here, for example, Guarnieri’s at

tor n eyinv i ted the jur yto r e v i ew my r i ad d e tail s of g o v e r n ment dec i

sionmaking. It is precisely to avoid this so rt of intrusion into internal g o v e rnmental affair s that th is Cour t ha s held that, “while the F i r s t Amendment i n vests public employees with ce rt a i n righ t s , itdoes not empowerthem to ‘ c onstitutiona lize the employee grievance.’ ” Id., at 420. In ter p r e tin gth e Petitio nClau se to ap plyev enwh ere matter s o f pub lic conce r na r e not involv ed would b e unne ces s a ry, or even dis

ruptive, when there is already pr otection for the publi cemployees’ rights to file grievances and litigate. Adopt i ng adifferen trule for Pe

titionCl au se c l aim s wou l d pr ov ide a r e ady mean s forpu blicemploy

ees to c i r c u mvent the public c o nc er n test’s protections and aggravate potentialhar mto the g o v e r n ment’ s inter e sts byc o m p oundingthe
c o sts of c o mply in g withth e Con s titu t i on
. Pp. 8–13.

(c ) Guar nier i’ sc l aim tha ta pply i ngthe p u blicc o nc er n testto the PetitionCl au s ewou l d be inappr opr i ate inlight of the p r ivate nature of manypeti ti ons forr e dr ess lac k s mer i t. Al thoughthe Clause un
doubtedly has force and application in the context of a persona l grieva ncea ddres s e d t ot h e gover n m e nt, p e titions to the g o v e rnment3 Cite as: 56 4 U

. S. ____ (2011)
Sy llabu s

assu me anad ded dimen s ionwh en th eyseek to adv a n c e politic al, so

cial, or other ideas of inter e st tothe c o mmunityas awhole. The Clau se’ s h i sto r yr e v e als th e fr equ e n tu s e of petit i on s t oaddr ess a wide range of political, s o cial, and other matters of great publ ic im

por tan d in terest. Pp. 13–17

.

(d) The framework used to governpublic employees’ Sp eech Clause claims, when applied to the Petiti on C l a u se, will protect both the gover n m e nt ’s int e res t s a n d the em pl oyee’s First Amendment right. If a publ ic emplo y ee petitions as an e m ployee on a matter o f purely pri

v a te c o nc er n, his Fir s t Ame n dment inter e st must giv eway , as it does inspeec hc a ses. San Di egov. Roe , 543 U. S. 77, 82– 83. If h epeti

tions a s a c i tiz e n on a ma tte rof pu blic concern, his First Amendmen t interest mustbe balanced agains t the government’s countervailing interest in the effective and effici ent manag e ment of its inter n al af

fairs. Pick eri ng, supra , at 568. If that balance favors the public em

ployee, the First Amendmen t clai m wil lb e s u s t a i n e d

. I f t h eb a l a n c e favors the employer, the employee’ s Fir s t Amendment c l aim wi ll fa i l even though th e petition is on a ma tter of pub lic conce r n. As under the Speech Clause, whether a petitionrelates to a m a t t er of public
conce r n will depend on its “content , form, and context

. . . , as re
vealed by the whole reco rd.” Connick, sup ra , at 147 –14 8, n

. 7. Th e forum in whi c h a petition is lodged will al so be relevant. See Snyder

v. Phelps , 562 U. S. ___, ___

. A pe tition fi led with a government em

ployer using an internal grievanc e procedure in many cases will no t seek to c o mm unic a te to the publicorto adv a nc e a polit ic al orsoc i al poin t of v i ew b e y o n dth e employ men tc o n t ex t. Pp. 17–1 8.

(e) Absent full briefs by the pa rties, the Court need not consider how the fo rego ing frameworkwould apply to this cas e
. P. 19. 364 Fed. Appx . 749, v a c a ted an d r e man d ed.

K ENNEDY , J., delivered the opinion of theCourt, in which R OBERTS , C. J., and G INS B URG , B REY ER , ALITO , S OTOMAYOR , andK AGAN , JJ., joined. T HOMAS , J., filed an opinion concurri ng in the judgment. S CALIA , J., filed an opinion concurring inth e judgment i npart and dis

senting in part._________________

_________________ 1 Cite as: 56 4 U

. S. ____ (2011)
Opinion of theCourt

NOTIC E : Th is op i n ionis subjec t to f o rma lrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to
n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u rt of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s
. 

## SUPREME CO URT O FTHE UNI TED STATES

No. 09–1 47 6

BOR O U G H OF DURY EA, PE NN SYLV ANIA , ET AL ., PETITIONERS v. C H AR L ES J. G UAR N I ER I
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE THIRD CIRCUIT [Ju n e20, 2011 ] J USTICE K E NNEDY delivered the opinion of the court. Among other rights essential t o freedom, the First Amendment protects “ t he right of the people .

. . to petition the Government for a redress of grievances.” U. S

. Const., Amdt. 1. This case concerns the extent of th e protection, if any, that the Petition Clause grants publi c employees in routine disputes with government employers. Petitions are a form of expression, an d employees who invoke the Petition Clause in most cases could invoke as well the Speech Clause of the First Ame n dment. To show that an employer interf ered with rights under the Speech Clause, the em ployee, as ageneral rul e , must sho w that his speech was on a matter of public concern, as that term is defined in the precedents of this and other courts. Here the issue is whether thattest applies when the employee invok e s the Petition Clau se. Alone amo n g the Courts of Appe als to have addressed the issue, t h e Court of Appeals for the ThirdCircuit ha s held that the public concern test does not limit Petition Clause clai ms by public employees

. For the reasons state d below, this conclusion is incorrect.2 BOROUGH OF DURYEA v. GUARNIE RI
Opinion of theCourt I Charles Guarnieri filed a union grievance challenging his termination as chief of police for the borough of Duryea, a town of ab out 4,600 persons in northeastern Pennsylvania. His grievance proceeded to arbitrati onpursuant to the police union collective-bargaining agreement. The arbitrator found that the borough council, Duryea’s legislative body and the entity responsible for Guarnieri’s termination, comm itted procedu r al errors in connection with the te rmination; and the arbitrator also found that Guarnieri engaged in miscond u ct, includin g “attemptingto intimida te Council members.” App. 37, 38. The arbitra tor orderedGuarnieri reinstated after a disciplinary suspension. Id

. , at 38. Upon Guar nieri’s return to the job, the council issued 11 directives instructing Guarnieri in the performance of his duties. The council’s attorney ex plained that the counc il “wanted to be sure that the chief understood what wa s going to be expected of him upon his return.” Tr. 19:12–1 4 (Apr. 16, 2 008). One directive prohibited Guarnieri from workingov ertime wit h out the co uncil’s “exp ress permission.” App

. 59, ¶1. Another indicated tha t“[t]he police car is to be used for official business only.” Id

. , at 60, ¶9. A third sta t ed that th e “Duryea municipal building is a smok e free building” and that the “police department is not exempt.” Id. , at 61, ¶10. Guarnieri testified that, because of these and other directives, his “ c oming back wasn’t a warm welcome feeling. ” Tr. 65:7 –8 (Apr. 1 5 , 2008). Guarnieri filed a secondun ion grievance challenging the dire ctives. The arbitratori n structedt h e council t o
m o d i f yo rw i t h d r a ws o m e o f the directives on the grounds that they were vague , interfered with the authority of the mayor, or were co ntraryto t h e collective-bargaining agreement. Guarnieri filed this lawsuit agai nst the bo rough, the borough council, and individual members of the council3 Cite as: 56 4 U

. S. ____ (2011)
Opinion of theCourt under 42 U. S. C. §1983. Guarnieri claimed that his firs t union grievance was apetition pr otected by the Petition Clause of the First Amendment, and he alleged that the directives i ssued upon his reinstatement wer e retaliation for that pro t ected activ i ty. After this suit was fil e d, the cou n cil denied a request by Gua r nieri for $338 in overtime. The United State s Departmen t of Labor investigated and concluded th at Guarnieri was entitled to be paid. The co uncil offered Guarnieri a check for the amount, but Guarnieri refused to accept it. Instead, Guarnieri am ended his c o mplaint to encompass the denial of overtime. Guarnieri alleged that his §1983 lawsuit was a petition and that the denial of overtime constituted r e taliati on f o r his having filed the lawsuit. Under the law of the Circuit, the defendants could not obtain judgment as a matter of law on the basis that the lawsuit and grieva nces were n o t on a matter of public
concern. The case proceeded to a jury. Gua r nieri’s attorney argued that the council was “sending a message to” Guarnieri through the directives and the denial of over

time: “You might have won your arbitration, but we co ntrol you.” Tr. 53:24–25 (Apr. 17, 20 08). The Di strict Court instructed t h e jury tha tthe lawsu i t and union grievance s were “prote cted acti vit y
. . . under the const i tution,” and that the ju ry could fi nd defendants liable if it found an adequate connection between the protected activity an d the alleged retaliation. Id. , at 61:17–20; 62. The jury found in favor of Guarnieri. The j u ry awa r de d $45,000 in compensatory damages and $24,0 00 in punitive damage s for the directives, as well as $358in compensatory dam

ages and $ 28,000 in punitive damages for the denial of overtime. The District Court a w arded $45, 000 in attorney’s fees and denied defendants’ renewed motion for judgment a s a matter of law. Defendants appealed on the ground that Guarnieri’s4 BOROUGH OF DURYEA v. GUARNIE RI
Opinion of theCourt grievances and lawsui t did not a d dress matters of publ ic
concern. Courts outside the Thir d Circuit have held tha t allegedly retaliatory actions by government employer s against government employees may not give rise to liability under the Petition Clause unless the employee’s petition related to a ma tte r of public c o ncern. Se e, e.g., Kirby

v. Elizab eth City , 38 8 F. 3d 44 0, 448–449 (CA4 200 4); Tang v. Rh ode Island, Dept. of Eld erly Affairs , 163 F. 3d 7 , 11–12 (CA1 1998); White Plains Towing Corp. v. Pa tter

son , 991 F. 2d 1049, 1059 (CA2 19 93). These courts rely on a substantial overlap between the rights of speech and petition to justify the application of SpeechClause pr ecedents to Petition Clause claims. Theyreason that, whether th e grievance is co nsidered under the Speech Clause or t h e Petition Clause, the government employer i s entitled to take adv e rse action against the employ ee unless the dispute involves a matter of public concern. Rejecting that view, the Cou rt of Appeals he re affirmed the award of compensatory dama ges, although it found insufficientevidence to sustain the award of punitive damages. The Court of Appeals concluded that “ ‘a public employee who has pe titioned the government through a formal mec hanism suc has the f iling of a law s uit or grievance is protected under the Petition Clause f r om retaliation for tha tacti vity, e v en if the p e tition concerns a matt er of sol e ly priv ate concern.’ ” 364 Fed. Appx. 74 9, 753 (CA3 2010) (quoting Forakerv. Chaffin ch , 501 F. 3d 231, 236 (CA3 2007)). The dec i sion of the Court of Appeals was consistent with the rule adopted and expl ained by that court in San Filippo v. Bongiovanni , 30 F. 3d 424, 442 (1994). Th is Court granted certi orari to resolve the conflict in the Courts of Appeals. 562 U. S. ___ (2 010). II When a public employ ee sues a government employer under the First Ame n dment’s Speech Clause, the em

­5 Cite as: 56 4 U

. S. ____ (2011)
Opinion of theCourt ployee mus tshow that he or she spok e as a citizen on a matter of public concern. Connickv. Myers , 4 61 U. S. 138, 147 (1983). If anemployee does n o t speak as a citizen, or does not address a matter of public concern, “a federal court is not the approp riate forum in which t o review th e wisdom of a personneldecisiontaken by a public agency allegedly in reaction to the employee’s beh a vior.” Ibid. Even if an employee d oes speaka s a citizen o na matter of public concern, the employee’s speech is not automatically privileged. Courts balance the First Amend m ent interest of the employee against “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Picker ing v. Board of Ed. of To wnship HighSchool Dist. 205, Will Cty. , 391 U. S. 563, 568 (1968). This framework “re concile[s] the employee’s right to engage in speech and the government employer’s right to protect its own legit i mate interests in performing its mission.” San Diego v. Roe , 543 U. S. 77, 8 2 (2004) (per curiam)

. There are so me rights and freedoms so fund amental to liberty that they cannot be bargained away in a contract for public employment

. “Our responsibility is to ensure that citizens are not depri v ed of [thes e ] fundamental rights by virtue of working forthe government.” Con

nick, supr a , at 147; see also Keyishianv. Boar d of Regen t s of Univ. of State of N. Y. , 385 U. S. 589, 605–606 (1967). Nevertheless, a citizen who accepts public employment “must ac cept cer t ain l i mitations on his or her freedom.” G a rc et t iv. Ceballos , 5 47 U. S. 41 0, 418 (2006). The government has a substan t ial interest in ensurin gthat all of its operations are effic i ent and ef fective. That interest may require broad authority to supervise the conduct of public employees. “When someon ewho is paid a salary so that she will contribute to an agency’s effecti ve operation begins to do or say things that de tract from the agency’s effective operation, the government employer must have6 BOROUGH OF DURYEA v. GUARNIE RI
Opinion of theCourt some power to restrai nher.” Wat e rsv. Ch urchill , 51 1 U. S. 661, 675 (1994) (plurality opinion). Restraints are justified by the consensual nature of the employment relationship and by the unique na ture of the government’s interest. This case arises under the Petition Clause, not the Speech Clause. The parties litigated the case on the pre m
ise that Gu arnieri’s grievances and lawsuit a r e petitions protected by the Petition Clause. This Court’s precedents confirm tha tthe Petition Clause protects th e right ofindividuals to appeal t o cou rts and other forums established by the government for resolution of legal disputes. “[T]he rightof access t o courts for redress of wrongs is an aspect of the First Amendment right to pet i tion the government.” Sure- Tan, Inc. v. NLRB , 467 U. S. 883, 896– 897 (1984); see als o BE&K Constr. Co. v. NLRB , 536 U. S. 516, 525 (2002); Bill J o hnson’s Restau rants, I n c. v. NLRB , 461 U. S. 731, 741 (19 83); California Motor Tran sport Co.

v. Truckin g

Unlimited , 404 U. S. 508, 513 (1972). Although reta liation by a government employer for a public employee’s exercise of t h e right of access to the courts may implicate the protections of the Petition Clause, this case provides no necessity t o consider t h e correct application of the Petition Clause beyond that context. Although this case proceeds under the Petition Clause, Guarnieri just as easily could ha ve alleged that his e m
ployer reta liated against him for the speech contained within his grievances and lawsuit. That claim would have been subjec t to the public concern test already described. Because Guarnieri chose to proceed under the Petition Clause, however, the Court of Appeals applied a more generous rule. Following the d e cision of the Court o f Appeals in San Filippo, supra , at 443, Guarnieri was deemed entitled to protection from retaliation so long as his petition was nota “sham.” Under tha trule, defendants and other public employers might be liable under7 Cite as: 56 4 U

. S. ____ (2011)
Opinion of theCourt the Petition Clause even if the same conduct would not give rise to liability u n der the Speech Clause. The qu estion presented by this case is whether the history an d purpose of the Petition Clause justify the imposition of broader liability when an employ ee invokes its protecti on instead of the protection afforded by the Speech Clause. It is not necessary to s a y thatthe two Clauses are identical in their mandate or their purpose and effect to ack n owledge that the rights of speech and petition share substantial common ground. This Court has said that th e right to sp eak and t h e right t o petition are “cogna t e rights.” Th omasv. Collins , 323 U. S. 516, 530 (1945); see also Waytev. UnitedStates , 47 0 U. S. 598, 610, n. 11 (1985). “It was not by accident or coincidence that the rights to fr eedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition fo r redr ess of grievances.” Tho

mas , 323 U. S., at 5 30. Both speech and petition are integral to the democratic pr ocess, although not necessarily in the same way. The right t o petition allows citizens to express their ideas, hopes, and concerns to their government and their elected repre s entatives, whereas th e right to speak fosters the public exchange of ideas that is integral to deliberative democracyas well as to the whole realm of id eas and human affairs. Beyond the political sphere, bot hspeech an d petition advance pers onal expres

sion, although the righ t to pe tition is generally concern e d with exp r ession directed to the governmentseeking redress of a grievance. Courts should not presume there is always an essentia l equivalence in the two Clauses or that Speech Claus e precedents necessarily and in every case resolve Petition Clause claims. See ibi d

. (rights of speech and petition are “not identical”). Interpretation of the Petition Clause must be guided by the objectives and asp i rations that underlie the right. A p e tition conveys the special concerns8 BOROUGH OF DURYEA v. GUARNIE RI
Opinion of theCourt of its author to the government and, in its us ual form, requests action by the governmentto addres s those concerns. See Sure- Tan Inc., supra , at 896–897. This Court’s opinion i n McDonald v. Smith , 472 U. S. 479 (1985), has sometimes been interpreted to mean that the right to petition can extend no further than the right to speak; but McDonaldheld only that speech contained within a p e tition is subject to t h e same standards fo r defamation and libel as speech outside a petition. In thos e circumstan ces the Court found “n o sound basis for grant

ing greaterconstitutional prot ecti on to state m ents made in a petition .

. . than other First Amend m ent expressions.” Id. , at 485. There may arise cases where th e special concerns of the Petition Clause would provide a sound basis for a distinct analysis; and if th at is so, th e rules and principles that define the two rights might diffe r in emphasis and formulation. As other C o urts of Ap peals have recognized, however, claims of r e taliation by public employees do not call for this diverg ence. See supra , at 4

. The close connection between these rights has led Courts of Appeals other than the Third Circuit to apply the public concern test devel

oped in Speech Clause cases to Petition Clause claims by public empl oyees. As will be explained further, this a p
proach is justified by the extensive common ground in the definition and delineation of these rights. The considerations that s hape the a p plication of the Speech Clause to public employees apply with equal force to claims by those employees under the Petition Clau se. The substantial government interests that justify a cautious and restrained approac hto the protection of speech by public employees ar e just as relevant whe n public employees proceed under the Petition Clause. Petitions, no less th an speec h, can interfere with the efficient and effective operatio n of government

. A petition may seek to achieve results that “contravene governmen
­9 Cite as: 56 4 U

. S. ____ (2011)
Opinion of theCourt tal policies or impair the proper performance of governmental functions.” Garce tti , 547 U. S., at 419. Government must have authority, inappropriate circumstances, to restrain employees who use petitions to frustrate pro

gress towards the ends they have been hired to achieve. A petition, lik e other for ms of speec h, can bring the “mission of the employer and the profession alism of its officers into serious disrepute.” Roe , 543 U. S., at 81. A public employee might, for instance, use the courts to pursue personal vendettas or to harass m e mbers of the genera l public. That behavior could cause a seriou s breakdown in public confidence in the government and its employees. And if speech or petition were directed ator concerned other publi cemployee s, it could have a serious and det r imental effect on morale. When a petition takes the fo rm of a lawsuit a g ainst the governmentemployer, it may be particularlydisruptive.Unlike speech of other sorts, a lawsuit demands a response. Mo unting a de fense toeve nfrivolous claims mayconsume the time and resources of the government employer. Outside the c o ntext of public emplo y ment, this Court has recognized that the P e tition Clause does not protect “obj ectively baseless” litigation that seeks to “ ‘interfere directlywiththe business relationships of a competitor.’ ” Profes sional RealEs ta teInves t ors, Inc. v. Columbia Pictu res In dustri es, In c. , 508 U. S. 49, 60–61 (1993) (quoting Eas t er n Railroad Presid e nts Conferen cev. Noerr Moto r Frei ght, Inc. , 365 U. S. 127, 144 (1961)). In recognition of the subs tantial costs imposed by litigation, Congress has also req u ired civil rights plaintiffs whose suits are “f rivolous, un reasonable, or without foundation” to pay attor n ey’s fees incurred by defendants. Christi a ns
burg Ga rm ent Co. v. EE O C, 434 U. S. 412, 421 (1978); s e e also Fed. R u le Civ. Proc. 11 (p roviding sanctions for claims that are “presented for [an] improper purpose,” frivolo u s, or lack ing evidentiary support). The government lik ewise10 BOROUGH OF DURYEA v. GUARNIE RI
Opinion of theCourt has a significant interest in disciplining public employees who abuse the judicial process. Unrestr ained applic ation of th e Petition Clause in the context of government employment would su bject a wi de range of go vernment operations to invasive ju dicial superintendence. Employees may file grievances on a variety of employment matters, includin g working conditions, pay, discipline, promotions, leave, vacations, and termination s
. See Brief for National School Boards As sociation as Amicus Cu riae5. Ev ery govern ment action in response could present a potential fede r a l constitutional issue. Judges andjuries, asked to determine whether the gov

ernment’s actions were in fa ct retaliatory, would be required to give scrutinyto bo th the government’s response to the grievance and the governm e nt’s justifi c ation for its actions. This would oc casion review of a host of collateral matters t y pically left to the discr e tion of public officials. Budget pri o rities, personnel decisions, andsubstantive policies might all be laid before the jury. This would raise serious federalism and separation-of-powers concerns. Itwould also consume the time and attention of public officials, burden the exercise of legitimate authority, and blur the lines of accountability between officials an d the public. This case illustrates th ese risks and costs. Guarnieri’s attorney in vited the ju ry to re view my riad d e tails of government decisionmak i ng. She q u estioned t h e council’ s decision to issue directives in writing, rather than orally, Tr. 66 (Apr. 14, 2008); the council ’s failure to consult th e mayor before issuing t h e directive s, id. , at 1 05 (Apr. 15, 2008); the a m ount of m o ney spent to employ “ P hiladelphia lawyers” to defend Guar nieri’s l e gal challenges, id. , at 191–193:7–10 (Apr. 1 4 , 2008); 152–153 (Apr. 16, 2008); and the wisdom of the council’s decision to spend money to install Global Positioning Sys t em devices on police cars, id. , at 161–162 (same). Finally, the attorney invited the jury to evaluate the co uncil’s decisions in light of an em o­11 Cite as: 56 4 U

. S. ____ (2011)
Opinion of theCourt tional appeal on behalf of Guarnieri’s “little dog Hercules , little white fluffy dog and half Shitsu.” Id. , at 49:13–14 (Apr. 14, 2008). It is precisely to avoid this intrusion in to internal governmental affairs that this Court has heldthat, “while the First Amendment invests public employees with certain rights , it does not empower them to ‘constitutionali z e the employee grievance.’ ” G a rce t t i, s u pra , at 420 (quoting Connick , 461 U. S., at 154). If the Petition Clause were to app l y even whe r e matters of public concern are n o t involved, that would be unnecessary, or even disruptive, whenthe r e is alread y p r otection for the rights of public employees t o file grieva nces and to litigate. The government can and often does adopt statu

tory and regulatory m e chanism s to protect the rights of employees against improper retaliation or dis c ipline, whi l e preserving important government interests. Cf. Garc etti , supra , at 4 25 (noting a “powerfu l network of legislative enactments”). Employees who sueunder federal and stat e employmen tlaws often benefit fr om generou s and quite detailed antiretaliation provisions. See, e.g., Pa. Sta t

. Ann., Tit. 4 3 , §1101.12 01(a)(4) (Pu r don 2009); §1101.1302

. These statutory protections are subject to legislative revision and can be designed for the unique needs of State, local, or Federal Governments, as well as the speci a l circumstan ces of particular governmental offices and agencies. The Petition Clause is not an in s trument fo r public employees tocircumvent these legis l ative enactments when pursuing claims based on ordina ry workplace grievances. In light of the gover n ment’s interests in the publi c employment context, it would be surprising if Petition Clause claims by public employees were not limited a snecessary to protect the employer’s functions and responsibilities. Even beyond the Speech Clause, t h is Court has explained that “government has significantly greater leeway in its dealings with citizenemployees than it does12 BOROUGH OF DURYEA v. GUARNIE RI
Opinion of theCourt when it bri n gs its sovereign power to bear on citizens at large.” Engquistv. Or egon Dep t . of Agricultu re , 553 U. S. 591, 599 (2 008); see a l so NASA v. Nelson , 562 U. S. ___ , ___ (2011) ( s lip op., at 12). The government’s interest in managing i t s internal affairs requires proper restraints o n the invocation of rights by employees when t h e work place or the government employer’s responsibiliti e s may be a f

fected. Th ere is no reason to think the Pet i tion Clause should be a nexception. The public concern tes twas developed to pro t ect these substantial government interests. Adoption of a different rule for Petition Clause claims would prov ide a read y means for public employees to circumvent the test’s pro

tections. Consider Sheila Myers, who was the original plaintiff in Connick

. She circu lated “a q u estionnair e soliciting the views of her fellow staff members” on various office matters. 461 U. S., at 141. The Court held that Myers’ claim for retali ation failed the public concern tes t because the questionnaire was “mo s t accu rately cha r acterized as an employee gr ievance concerning internal office policy.” Id. , at 154. It would undermine that principle if a different result would have obtained had Myers raised those same claims using a formal grievance procedure. Myers’ employer “reasonably believed [Myers ’ complaints] would disrupt the office, undermine his authority, a n d destroy clo s e workingrelationships.” Ibid

. These concerns would be no less significant in the con t ext of a fo rmal grievance. Employees should not be able to evade the rule articulated in the Connick case by wra p ping their speech in the mantle of the Petition Clause. Articulatio nof a separate test for the Petition Clause would aggravate potential harm to the government’s interests by compounding the costs of compliance with the Constitution. A differ e nt rule for each FirstAmendment claim would require employers to separate petitions from other speec h in order to afford them different treatment ;13 Cite as: 56 4 U

. S. ____ (2011)
Opinion of theCourt and that, i nturn, wo uld add to the complexity and e x
pense o f co mplia ncewi th the Co ns tit u tio n
. Id entif yi n g pe titions might be easy when employe e s employ formal grievance procedures, but the right to petition i s not limited to petitions lodged under formal procedure s
. See, e.g., Brownv. Louis i a n a , 383 U. S. 131 (1966). Indeed, th e employee i n Connick could have made a colorable argument that her questionnaire ough t to be viewed as a petition for redress of grievances. Guarnieri claims application of th e public co ncern test to the Petition Clause would beinappropriate in light of the private nature of many pe titi ons for red r ess of grie vances. The Petition Clause undoubtedly does have force and application in th e context of a person al grievance addressed to the government. Se e, e.g., Trainmenv. Vir

ginia ex rel

. VirginiaSta t e Bar , 377 U. S. 1 (1964); Th o
mas , 323 U. S., at 5 30–531. At the founding, citizens petitioned on a wide ra nge of subjects, including matters of both priv ate and pu blic concer n. Petition s to the colonial legisla t ures conce r ned to pics as diverse as debt actions, estate distributions, divorc e proceedings, and requests for modification of a criminal sentenc e
. Higginson, A Short Hi story of the Right to P e tition Government for the Redress of Grievances, 96 Yale L. J. 142 , 146 (1986). Although some claims will be of i n terest only to the individual making the appeal, for that individual the need for a legal remedy may be a vital imperative. See, e.g. , M. L. B. v. S. L. J., 519 U. S. 102 (1996); Boddie v. Con

necti c ut , 40 1 U. S. 37 1 (1971). Outside th e public employment context, constitutio nal protection for petition s does not necessarily tu rn on whet her those petitions relate to a matter of public concern. There is, however, no merit to th e suggestion that the public concern test can n ot apply u n der the Petition Clause because the majority of petiti ons to colonia llegislatures addressed matters of purely pri v ate concern. In analogous14 BOROUGH OF DURYEA v. GUARNIE RI
Opinion of theCourt cases under the Speech Clause, t h is Court h a s noted th e “Constituti o n’s special concern with threats t o the right of citizens to participate in political affairs,” Connick, supr a , at 145, even though it is likel y that, in this and any other age, most speech concerns purely private matters. The proper scope and application of the Petition Clause lik e
wise cannot be determined mere ly by tallying up petitions to the colonial legislatures. Some effort must be made to identify the historic and fund amental princi ples that led to the enu m eration of the righ t to petition in the Firs t Amendment, among other rights f undamental to liberty. Petitions to the go vern ment assume an adde d dimension when they seekto advance political, social, o rother ideas of interest to the community as a whole. Petition, as a word, a con c ept, and an essential safeguard of freedom, is of ancient s i gnificance in the English law andthe AngloAmerican legal tradition. See, e.g., 1 W. Blacks tone, Commentaries *143. The right to petition applied to petitions from nobles to the King, from Parliament to theKing, and from the people to the Parliament, and it concerned bothdiscrete, p e rsonal injuries and gr eat matter s of state. The right t o petition traces its origins to Magna Carta , which confi r med the ri ght of baro n s to petiti on the Kin g

. W. McKech nie, Magna Carta: A Commentary on the Great Charter of King John 467 (rev. 2 ded. 1958). The Magn a Carta itself was King John’s answer to a petition from the barons. Id. , at 30–38. Later, the Petition of Right of 16 28 drew u p on centuries of tradition and MagnaCarta as amodel for the Parliament to issue a plea, or even a demand, that the Crown refrain fro mcertain a ctions. 3 C a r. 1, ch. 1 (16 27). The P e tition of Right sta t ed f o ur princip a lgrievances: taxation without consent of Parliament; arbitrary impri s onment; q uartering o rbilleting of soldiers; and the imposition of martial law. After its passage b y both Houses of Parliament, the Petition r e ceived the15 Cite as: 56 4 U

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Opinion of theCourt King’s assent and became part of the law of England. See S. Ga rdiner , The First Two S t uart s and the P u ritan Revo

lution, 1603 –1660, pp. 60–61 (188 6). The Pet i tion of Right occupies a place in English constitutional history supe rseded in im portance, perhaps, only by Magna Carta itself and the Declaration of Right of 1689. The followi ng years sa w use of mass petitions to address matters of public concern. See 8 D. H u me , H i story o f England fro mthe Invas i on of Juliu s Caesar to the Revolution in 168 8, p. 122 ( 1763) (“Tumultuous petitioning .

. . was an admirable expedient .

. . f o r spreading discontent, and for uniting the nation in any popular clamour”). In 1680, for instance, more than 1 5 ,000 persons signed a petition regarding the summoning and dissolution of Parliament, “one of the major political issues agitating the nation.” Knights, London’s ‘Monster’ Petition, 36 Historical Journal 39, 40–43 (1993). Nine years later, the Decla

ration of Right listed the illegal a cts of the sovereign and set forth certain rights of the King’s subjects, one of which was the righ t to petition the sovereign. It stated that “i t is the Right of the Subjects to petition the King, and all Commitments and Prosecutions for such Petitioning are Illegal.” 1 W. & M., ch. 2; see also L. Schwoerer, The Declaration of Rights, 1689, pp. 69–71 (1981). The Declaration of Independence of 1776 arose in the same tradition. After l i sting other specific grievances and wrongs, it complained, “In ev ery stage of these Oppressions We h a ve Petitioned for Redress in the most humble terms: Our repeated Petitions have been answ e red only by repeated injury.” The Declaration of Indepen d ence ¶30. After indep e ndence, petitions on matters of public concern continued to be an esse ntial part of contemporary debates in this country’s early history. Two years before the adoption of the Constitution, James Madison’s Mem o
rial and Remonstrance against Religious Assessments, an important document in the history of the Establishment16 BOROUGH OF DURYEA v. GUARNIE RI
Opinion of theCourt Clause, was prese n te d to the Gene ral Asse mbly of the Commonwealth of Virginia as a petition. See 1 D. Laycock, Religious Liberty: Overviews and History 90 (2010); Arizona Ch ristian Sc hool Tuit ion Organizati onv. Winn , 563 U. S. ___ , ___ (2011) (slip op., at 12–13). I t attracted over 1,000 signatures. Laycock, supra , at 90 , n. 153. During the ratification debates, Antifederalists circulated petitions urging delegates not t o adopt th e Constitution absent modification by a bill of rights. Boyd, Antifederalists and the Accept an ce of the Constitution: Pennsylvania, 1787–17 92, 9 Publius, No. 2, pp. 123, 128

– 133 (Spring 1979). Petitions to the National Legislature also played a central part in the legislative debate on the subject of slavery in the years before the Civil War. See W. Mill e r , Arguing Ab out Slavery (1995). P e titions allowed participation in democratic governance even by gro u ps excluded from the franchise. See Mark , The Vestigial Constitution: The H i story and Significance of the Right to Petition, 66 Ford. L. Rev. 2153, 218 2 (1998). F o r instance, petitions by women seeking the vo te had a ro le in the early woman’s suffrage movement. See Cogan & Ginzberg, 1 846 Petition for Woman’s Suff rage, New Yor k State C o nstitutional Convention, 22 Signs 427, 437–43 8 (1997). The right to petition is in some sense the source of other fundamental rights, for petitions have provided a vital means for citizens to request recogn ition of new righ ts a n d to asser t existing righ ts against the sovereign. Petitions to the courts and similar bodies can likewise address ma tters of gr e a t public i m port. In the contextof the civil righ ts movement, lit igation provided a means for “the distinctive contribution of a minority gr oup to the ideas and beliefs of ou r society.” NAACP v. Button , 371 U. S. 415, 431 (1963). Individua l s may also “engag[e] i n litigation a s a vehicle f o r effe ctive political ex pression and association, as well as a means of communicating useful17 Cite as: 56 4 U

. S. ____ (2011)
Opinion of theCourt informationto the pub lic.” In re Primus , 436 U. S. 412, 431 (1978). Litigation on matters of public concern may facilitate the informed public participation that is a cornerstone of democraticsociety. It also allows individuals to pursue desired ends by di rec tappeal to governme nt officials charged with a p plying the law. The government may not misuse its role a s employer unduly to distort this deliberative process. S ee Garcetti , 547 U. S., at 419. Public em ployees are “the members of a community most likely to have informed and definite opinions” ab out a wide range of matters related, directly or indirectl y, to their e m ployment. Pick ering , 391 U. S., a t 572. Just as the public has a right to hear the views of public employees, the public has a right to the benefit of thosee m ployees’ participatio nin petitioning activity. Petitions may “allow the public airing of disputed facts ” and “promo te the evolution of the law by supporting t h e developmen t of legal t h eories,” NLRB , 536 U. S., at 53 2 (internal quotation marks omitte d), and these and oth e r benefits may not accru e if one class of knowledgeable and motivated citizens is prevente d from engaging in petitioning activity. When a public emplo y ee se ek s to participate, as a citize n, in the process of deliberative democracy, either thro ugh speech or petition, “it is necessary to rega r d the [employee] as the member of the general public he seek s to be. ” Picke r ing , supra , at 5 74. The framework used to govern Speech Clause claims by public employees, whe napplied to the Petition Clause, will protect both the interests of the government and the First Amen dment righ t. If a public employee petitions as an employe e on amatter of purely private concern, the employee’s First Amendment interest must give way, as it does in speech cases. Roe , 543 U. S., at 82–83. Whena public employee petitions as a citizen on a matter of public concern, the employee’ s First Amendment interest must be balanced against the countervailing interest of the18 BOROUGH OF DURYEA v. GUARNIE RI
Opinion of theCourt government in the effective and efficient management of its internal affairs. Pickerin g

, supra , a t 568. If that balance favors the public employee, the employee’s First Amendment claim will be sustained. If the interference with the go vernment’s operations is such that the balance favors the employer, the empl o y ee’s First Amendme n t claim will fail even though the petition is on a matter of public concern. As under the Speech Clause, whether an e m ployee’s petition relates to a matter of public concern will depend on “the content, form, and cont ext of [the petition], as revealed by the whole r e cord.” Connick , 461 U. S., at 147– 148, and n. 7. The foru m in which a petition is lodged will be relevant to the determination of whether the petition relates to a matter of public concern. See Snyder v. Phelps , 562 U. S. ___ , ___ (2011) ( s lip op., at 8–9). A petition filed with an employer using an internal grieva nce procedure in many cas e s will not seek to communicate to the public or to advance a polit icalor social p o int of view beyond the employmen tcontext. Of course in one sens e the public may always be interested in how govern ment offi cers are performing their duties. Butas the Con n ick and Pi ckerin g test has evolved, that will not always suffice to show a matter of public
concern. A petition th at “involve s nothing more than a complaint about a change in the employee’s own duties ” does not relate to a matter of public concern and accor d

ingly “maygive rise t o discipline without i m posing an y special burden of justification onthe government employer.” United S t atesv. Tr easu ry Employees , 513 U. S. 454, 466 (1995). The right of a pu blic employee under the Petition Clause is a right to p a rticipate as a citizen, through pet i tioning act i vity, in the democraticprocess. It is not a right to transform everyday employment disputes into matters for cons titutio nal litigation in the federal courts.19 Cite as: 56 4 U

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Opinion of theCourt III Because the Third Circuit did not find it necessary to apply this framework, there has been no determination as to how it would apply in th e context of this case. The parties did not address the issuein the opening brief or the response, and the United States did not address the issue in its brief as a m icus cu ri ae
. In their replybrief, petitioners suggest that this Court should address the issue and r e solve it in their favor. Yet in their opening brief petitioners sought only vacatur and remand. This Court need not consider this issue without the benefit of full briefs b ythe partie s
. The judgment of the Court of Appeals is v a cated, an d the case is remanded for further proceedings consistent with this opinion. It is so orde red._________________

_________________ 1 Cite as: 56 4 U

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T HOMAS , J

. , co ncu rrin gin j u dgm e nt 

## SUPREME CO URT O FTHE UNI TED STATES

No. 09–1 47 6

BOR O U G H OF DURY EA, PE NN SYLV ANIA , ET AL ., PETITIONERS v. C H AR L ES J. G UAR N I ER I
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE THIRD CIRCUIT [Ju n e20, 2011 ] J USTICE T HOMA S , concurring in th e judgment. For the reasons set fort h by J UST I CE S CALIA , I seriously doubt that lawsuits are “petitions” withinthe original meaning of the Petition Clause of the First Amendment. See post , a t2–3 (opinion concurri ng in judgment in pa rt and dissenting in part). Unreasoned statements to the contrar yin this Court’s prior decisions do not convince me otherwise. Like the Court, ho weve r, I need not decide tha t question today because “[t]he parties litigated the case on the premise that Gua r nieri’s grievances and lawsuit are petitions protected by t h e Petition Clause.” Ante , at 6. I also l a rgely agree with J USTI CE S CALIA about the framework for assessing public employees ’ retaliatio n claims und er the Petition Clause. The “public concern” doctrine of Connickv. Myers , 4 61 U. S. 1 38 (1983), is rooted in the First Amendment’s core protection of spe e ch on matters of public c o ncern and has no relation to th e right to peti tion. See post , at 3–7. I would not import tha t test into th e Petition Clause. Rather, like J US TICE S CALIA , I would hold that “th e Petition Clause protects public employees against retaliation forfiling petitions unles s those petitions are ad dressed to the govern ment in it s capacity as the petitioners’ employer, rather than its ca

pacity as th eir sovereign.” Post , at 7. But I would not end th e analysis after determ ining tha t2 BOROUGH OF DURYEA v. GUARNIE RI

T HOMAS , J

. , co ncu rrin gin j u dgm e nt a petition was add r essed to th e governmentas sovereign. Recognizing“the realities of the employment context,” we have held that “govern m ent has s i gnificantly greater lee

way in its dealings with citizen employees than it does when it bri n gs its sovereign power to bear on citizens at large.” Engquistv. Or egon Dep t . of Agricultu re , 553 U. S. 591, 600, 599 (2008). Even where a public employee peti

tions the government in its capacity as sovereign, I would balance the employee ’s right to petition the sovereign agai ns t the go vernmen t ’s in tere st as an emplo y er in the effective and efficient management of its internal affairs. Cf. G a rc et t iv. Ceballos , 547 U. S. 410, 419 (2 006) (noting that employees “speaking as citize ns about matters of pu b

lic concern” still must“face .

. . speech restrictions that
are necessa ry for their employers to operate ef ficiently and effectively”) ; UnitedS t atesv. Tr easury Em ployees , 51 3 U. S. 454, 492 (1995) (Rehnquist, C. J., diss enting) (“In conducting this balance [in the Speech Clause context], we consistently have given s ubsta ntial weight to govern

ment employers’ reasonable predictions of disruption, even when the speech involv ed was on a matter of public con

cern”); O’Co nnorv. Or tega , 480 U. S. 709, 721–722 (1987) (plurality opinion) (ba l ancing the “the reali t ies of the workplace” against the “legit imate privacy interests of public empl oyees” to co nclude that a warrant requirement would “seriously disrupt the routine conduct of busines s” and “be un duly burdensome”). In assess ing a retaliation claim under the Petiti on Clause, courts should be able to conclude that, in instances when the petition is especially disruptive, as some lawsuits might be, th e balance of interests may weigh in favor of the government employer. Applying this framework, I woul d vaca te th e judgment and reman d

. The Court of Appe als erred with respect to both Guarn i eri’s union grievance a n d his 42 U. S. C. §1983 suit. First, even assuming the grievance was a petition, it was addres sed to the local gove rnment in its capacity a s3 Cite as: 56 4 U

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T HOMAS , J

. , co ncu rrin gin j u dgm e nt Guarnieri’s em ployer. See post , at 8 (opinion of S CALI A , J.). Secon d , Guarnieri addressed his §198 3 suit to t h e Federal Government in its capa city as sovereign, not to the local go vernment as his emplo y er. See ibid. But the Court of Appeals did not consider whether t h e local gov

ernment’s interest as an employer “in achieving its goals as effectively and efficientl y as possible” n e vertheless outweighs Guarnieri’s interest inpetitioning the Feder a l Government regardinghis local employment. Engquist , supra , at 5 98 (internal quotation marks omitted). I would vacate andremand fo r the Cour t of Ap peals to conduc t that analysis in the firs t instance._________________

_________________ 1 Cite as: 56 4 U

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Opinion of S CALIA , J. 

## SUPREME CO URT O FTHE UNI TED STATES

No. 09–1 47 6

BOR O U G H OF DURY EA, PE NN SYLV ANIA , ET AL ., PETITIONERS v. C H AR L ES J. G UAR N I ER I
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE THIRD CIRCUIT [Ju n e20, 2011 ] J USTICE S CALIA , concu rring in the judgment i npart an d dissenting in part. I disagree with two aspects of the Court’s reasoning. First, the Court is incorrect to state that our “precedents confirm that the Petition Clause protects the right o f individuals to appeal to courts a n d other fo rums estab

lished by the government for resolution of legal disputes.” Ante , a t6. Our first o p inion clearly saying that lawsuits are “Petitions” under the Petition Clause came less tha n 40 years ago. In California Motor Tran sport Co. v. Tru c k

ing Unlimited , 404 U. S. 508 (1972), 1 an opinion by Justice Douglas, th e Court ass e rted that“ [ t]he right of access to the courts is indeed but one aspectof the rightof petition. ” Id., at 510. As authority it cited two habeas corpus cases, Johnsonv. Avery , 393 U. S. 483 (1 969), and E x

parte Hul l , 312 U. S. 5 46 (1941), neither of which even mentioned the Petition Clause. The assertion, moreover, was pure dic

tum. The holding of California Motor Tran sportwas that the Noerr- Penning tondoctrine, a judicial gloss on the

——————

1 Res p ondent would a gree, s i n c e he cited this ca s ein a r gu ment a s the earlies t

. Tr. of Oral Arg. 36. There were, however , thr ee cas e s in th e 1 9 6 0 ’ s which a dvert ed va guely t ola ws uit s as involving t h e righ t to petition. See Mine Wo rk ersv. Illinoi s Bar Assn. , 389 U. S. 217, 2 2 2 – 224 (1 96 7); Trainmenv. Vi r g inia ex rel . Vi rginia S t ate Ba r , 377 U. S. 1, 7 (196 4); NAACP v. Butto n , 371 U. S. 41 5, 430 (1 96 3).2 BOROUGH OF DURYEA v. GUARNIE RI
Opinion of S CALIA , J. Sherman Act tha tha d been held to immu nize certain lobbying (legislature-petitioning) activity, did notapply to sham litigation that “sought to bar .

. . competitors from meaningful access to a d judicatory tribunals,” 404 U. S., a t 510–512. The three other cases cited by the Court a s holding th at lawsuits are petiti ons, ante , at 6, are all statutory in terpretatio ndeci sions construing the National Labor Relations Act, albeit against the backdrop of th e Petition Clause. See BE&K Constr. Co. v. NLRB , 5 36 U. S. 516, 534–536 (2002); Sure- Tan, Inc. v. NLRB , 46 7 U. S. 883, 896–897 (19 84) Bill Johnson’s Restaurants, Inc.

v. NLRB , 4 61 U. S. 73 1, 741–743 (1983). Th e Court ha s never actually heldthat a lawsuit is a constitutionally protected “Petition,” nor does today’s opinion hold that. The Court merely observes that“[ t]he parties litigated th e case on the premise that Guarnie r i’s grievan c es and law

suit are pet i tions protected b ythe Petition Cl ause,” ante , at 6, and concludes that Guarni eri’s 42 U. S. C. §1983 claim would fail even if that premise were corr ect. I find the p r oposition t hat a lawsuit is a con s titutionally protected “ P etition” quite doubtful. The First Amend

ment’s Petition Clause states that “Congress shall make no law .

. . abridging

. . . the right of the people .

. . to petition the Governme nt for ared r ess of grie vances.” T h e reference to “the righ t of the pe ople” indicates that t h e Petition Clause was intended to codify a pre-existing individual right, which means that we m u st look to historical practice to d e termine it s scope. See Distri ct of Columbiav. Heller , 55 4 U. S. 570, 579, 592 (2 008). There is abundant hi storical evidence that “Petitions” were direct ed to the executiv e and legislative branches of government, not to the courts. In 1765, the Stamp Act Congress stated “[t]hat it is the right of the British sub

jects in these coloni es to petition the King or either H o use of Parliament.” Declaration of Rights and Grievance s , Art. 13, reprinted in 1 B. Schwartz, The Bill of Rights: A3 Cite as: 56 4 U

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Opinion of S CALIA , J. Documenta r y History 195, 198 (1 971); it ma de no m e ntion of petitions directed to the courts. As of 1781, seven state constitutions protectedcitizens ’ ri ght to a p pl y or petitio n for redress of grievances; al l seven referred on ly to legis l a
tive petitions. See An drews, A Right of Ac cess to Court Under the Petition Clause of the First Amendment: De

fining the Right, 60 Ohio St. L. J. 557, 604–605, n. 159 (1999). Th e Judiciary Act of 1789 did not grant federa l trial courts jurisdictio nto hear lawsuits arising under federal law; there is no indicati on anyone ever thought that this restriction infringed on the right of citizens to petition the Federal Governmentfor redress of grievances. The fact th at the Cour t never affir m ed a FirstAmendment right to litigate until its unsupported dictu m in 1972

— after havin g heard almost 200 years’ worthof lawsuits, untold numbers of which might h a ve been af fected by a First Amen dment righ t to litig ate

— should give rise to a strong susp icion that no such right exists. “[A] universal and long-es t ablished tradition of p r ohibiting certain con

duct creates a strong presumption that the prohibition is constitutional: Principles of libertyfundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation’s consciousness.” Nevada Comm’n on Ethicsv. Ca r r igan , ante , at 4 (internal quotation marks omit ted). I acknowledge, however, that scholars have made de

tailed historical argu ments to t h e contrary. See, e.g. , Andrews, supra , at 5 95–625; Pfander, Sovereign Immu

nity and th e Right to P e tition: Toward a First Amendment Right to Pu rsue Judicial Claims Ag ainst the Government, 91 Nw. U. L. Rev. 899 , 903–962 (1997). As the Court’s opinion ob s e rves, the parties have not litigated the issu e, and so I agree we should leave its resolutionto another day. Second, and of greater practical consequence, I disagree with the C o urt’s decision to apply the “pub lic concern”4 BOROUGH OF DURYEA v. GUARNIE RI
Opinion of S CALIA , J. framework of Connickv. Myers , 4 61 U. S. 13 8 (1983), to retaliation claims brought under t h e Petition Clause. The Court corre ctly holds that the Speech Clause and Petition Clause are not co-extensive, ante , at 7–8. It a c knowledge s , moreover, that the Petition Clause prote cts personal grievances addressed to the gover n ment, ante , at 13. B u t that is an understatement—rather lik e a c k n owledging that the Speech Clause protects ve rbal expression. “[T]he primary re sponsibilityof colonial assembli es was the settlement of private disputes raised by pet i tions.” H i g
ginson, A Short H i story of th e Ri ght to Petit i on Govern

ment for th e Redress of Grievance s , 96 Yale L. J. 142, 145 (1986). “[T]he overwh elming majority of First Congress petitions pr esented private claims.” 8 Docum e ntary His

tory of the First Federal Congress 1789–1791, p. xviii (K. Bowling, W. DiGiacom antonio, & C. Bickford eds. 1998). The Court nonetheles s holds that, at least inpublic em

ployment cases, the Petition Cla u se and Speech Claus e should be treated ide n tically, so that since the Speech Clause does not prohibit retaliation against public em

ployees for speak i ng on matters of private con c ern, neither does the Petition Clause. The Court gi ves two reasons for this: First, “[a] different ru le for each First Amendment claim would .

. . add to the complexity andexpense of compliance with the Constitution” and “wo u ld provide a ready means for public employees to circumve n t the test’s protections,” and second, “[p] etiti o ns to the government

. . . assume an added dimension when they seek to ad

vance polit ical, social, or other i d eas of interest to th e community as a whole.” Ante , at 12 –14. Neither reason is persuasive. As to the former: Th e complexityof treating the Petition Clause and Speech Clause separately is attributable to the inconsiderate disregard for judicial convenience displayed by those who ratified a F i rst Amend m ent thatincluded both provisions
as separa t econstitutional rights. A plaint iff does not5 Cite as: 56 4 U

. S. ____ (2011)
Opinion of S CALIA , J. engage in pernicious “circum v ention” of our S p eech Clause precedents when he brings a claim premised on a separate enumerated right to which those precedents are inapplicable. As to the latter: Perh aps petitions on matters of public concern do in som e sense involve an “added dimension, ” but that “added dimension” does not obliterate what has traditionally been the principal di mension of the Petition Clause. The public-concern limitation makes s e nse in the context of the Speech Clause, because it is speech on mat

ters of public concern that lies “w ithin the core of First Amendment protection.” Engquistv. Ore gon Dep t . of Agr i

cultur e , 55 3 U. S. 591 , 600 (2008). The Speech Clause “has its fu llest and most ur gent application to speec h uttered du r i ng a camp aign for po litical office.” Ci tizens Unitedv. Federal El ection Com m ’n , 558 U. S. ___, ___ (2010) (slip op., at 23) (internal quotation marks omitted). The uniqu e protection granted to politic al speech is grounded in the history of the Speech Clause, which “was fashioned to assure unfettered interchange of ideas for the bringing about of polit ical and social changes desired by the people. ” Connick , supra , at 145 (internal quotation marks omit ted). But the me re fact tha t we have a longstanding tra dition of granting heightened protection to spe echof public con

cern does n o t suggest that a “public concern” requirement should be w r itten into other co nstitutional provisions. We would not say that re ligious pr oselytizing is entitled to more protection under the Free Exercise Clause than private religious worship bec ause public proclamations are “core free exercise activity.” Nor would we say that the due process right to a neutral adjudicator is heightened in the context of litigation of nation a l importance because such litigat ion is somehow at the “core of the due process guarantee.” Like wise, given th at petitions to redre ss priva t e grievances were such a high proportion of petitions6 BOROUGH OF DURYEA v. GUARNIE RI
Opinion of S CALIA , J. at the foun ding—a pro p ortion that is infinitely higher if lawsuits are considered to be peti tions—it is ahistorical to say thatpe titions on matters of public conc ern constit u te “core petitioning activ i ty.” In the Court’s v i ew, if Guar

nieri 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 tha tp e tition; Guarnieri woul d have no cla i m 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. The Court responds that “[t]he proper scope and appli

cation of the Petition Clause . . . cannot b e determined merely by tallying up petiti ons to the colonial legisla

tures,” ante , at 14, but that misses the point. The text of the Petition Clause does not di stin guish petitions of publ i c concern fro mpetitions of private concern. Accordin gly , there should be no doctrinal distinction between the m unless the history or tradition of t h e Petition Clause justi

fies it. The mere fact that the Court can enumerate sev

eral historical petitions of public i m portance, ante , a t14– 16, does not establish such a tra dition, given that peti

tions for redress of private grieva nces vastly outnumbered them. Indeed, the Court’s holding is contr a ry to this Court’s historical treatment of the Petition Clause, assu m
ing (as the Court believes) that the Clause embraces liti

gation: We have decided innumerable cases establishin g constitutional rights with respect to litigation, and unti l today not a one of them has so m u ch as hinted that litiga

tion of public concern enjoys more of those rights tha n litigation of private concern. The Court’s belief in the social importance of pu blic petitions, and its reminiscences of someof t h e public-petition greats of yesteryear, ibid. , do not justify t h e proclamation of special constitutional rights for public petitions. It is the Constitution that establishes constitutional rights, n o t the Just i ces’ notions of what i s7 Cite as: 56 4 U

. S. ____ (2011)
Opinion of S CALIA , J. important, or the top numbers on their Petition Hit Pa

rade. And there is no basis for believing thatthe Petitio n Clause gives special protection to public petitions. Rather tha nshoehorning the “pu b lic concern” doctrine into a Clau se where it does not fit, we shoul dhold that the Petition Clause protects public employees against re

taliation for filing peti tions unl es s those peti tions are a d

dressed to t h e governm e nt in its c a pacity as t h e petition

ers’ employer, rather than its capacity as their sovereign. As the Court states, we have long held that “government has significantly greater leeway in its dealin gs with citi

zen employees than it does whenit brin gs i t s sovereign power to bear on citizens at large.” Ante , at 11–12 (quot

ing Engquist , sup ra , at 599; internal quotation marks omitted). To apply to t h e Petition Clause context what we have said regarding the Speech Clause: Wh en an em
ployee files a petition with the government i nits capaci t y as his employer, he is not acting “ a s [a] citize[n] for First Amendment purposes,” because “there is no relevan t analogue to [petitions] by citizens who are not governmen t employees.” G a rc et t iv. Ceballos , 5 47 U. S. 41 0, 421, 423– 424 (2006). To be su re, the line between apetition ad

dressed to governmentas th e pet i tioner’s e m ployer and one addressed to it as sovereign is not always clear, but it is no more fuzzy than the line bet w een matters of private and matters of public concern. 2T h e criterion I suggest

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2 Compare, e.g., Alpha EnergySavers, Inc

. v. Hansen , 381 F. 3d 9 17, 927 ( CA9 20 0 4) (tes timon y c o n c er n i ngc l aim of emp l oy men tdisc r i mi n a
tion byg o v e rnment c o ntr a c t orc o nstituted matterof publicc o nc ern because “[l] iti g ation seekin g to ex pos e
. . . wron gfulgovernmenta l
ac tiv i tyis, by its v e r ynatur e , a m a tterof publicc o nc er n”), with Padilla

v. South Harrison R-II School Dist. , 18 1 F. 3d 99 2, 997 (CA 8 199 9) (teacher’s testi m ony approvi n g sexualr e la tionship betwe e n teac herand minorwas m a tterof pr iv ate c o nc ern bec a use it “does n o t r e late to th e teac her ’ s legi timate d i s a gr eement witha s c h ool boar d’ s polic ies”). An d compare, e. g. , Voigtv. Sav e l l , 70 F. 3d 1552, 15 60 (CA 9 1995) (s peec h rega rdingho w j u dge ha n d led t w o int e rna lpers onne l m a t t e rs was8 BOROUGH OF DURYEA v. GUARNIE RI
Opinion of S CALIA , J. would larg ely resolve the legi timate pract i cal concerns identified b ythe Court, ante , at 10–12, while recognizin g and giving effect to the diffe rence between the Speech and Petition Clauses. Under what I think t o be the proper test, the Thir d Circuit judgment before us here should be reversed in part and affirmed in part. The portion of it upholding Guarn i

eri’s claim of retaliation for having filed his union griev

ance must be reversed. A union grievance is the epitome of a petition addressed to th e government in its capaci t y as the petitioner’s employer. No analogous petitions to the government could have been filed by pri v ate citizens, who are not even permitted to avail themselves of Guarnieri’s union grievance procedure. Contrariwise, the portion of the judgme nt upholding Guarnieri’s claim o f retaliation for having filed his §19 83 claim m u st be affir m ed. Given that Guarnieri was not an employee of the Federal Gov

ernment, it is imposs ible to say that the §1983 claim was addressed to government in its ca pacity as his employer. I think it cle a r that reta liating against a state employee for writing a l e tter to his Congressman about his state job would run afoul of the Petition Clause. Assuming that the §1983 laws uit should be treated like a letter to a Con

gressman for Petition Clause purposes—a proposition which, I again emphas ize, is doub tful, but which the par

ties do not dispute in this case—retaliation for having file d his lawsuit also violates the Clause.

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ma tter of pub l ic conce r n b e c a us e “[t]he pu b lic ha s a ninteres tin know

ingwhetherth e c o ur t tr eats it s job appli c ants fair ly”), with Maggiov. Sipple , 211 F. 3d 13 46, 1 3 5 3 (CA 11 200 0 ) (testi mon ya th e ar in gc o n
cerning employee grievancewas matte r of private concern because it did “not allege

. . . fraud or corrupt ion in [defendant’s] i m plementatio n of its personnel policies and appeal procedures”).