William H. Rehnquist: We will hear this argument in Case No. 85-2085, Walter H. Rankin, Etc. , et al., Petitioners. v. Ardith McPherson. Mr. Lee, you may begin whenever you're ready.
Billy E. Lee: Mr. Chief Justice, may it please the Court, chronologically developing our case, on January 12, 1981, Constable Rankin, who represents one of the eight constable precincts in Harris County appointed a new deputy, Ardith McPherson. It is county procedure for a new county employee to be on a 90-day probation period at which the employee and the employer may look each over to determine whether they wish to extend beyond 20 days and go into indeterminate employment there. The employment period that began on January 12, 1981, would have ended on April 12, 1981. We had a short circuit occur though in that occasion. President Roosevelt... not... President Reagan was sworn in on January 20 of-- [Laughter] Either one. Thank you. --on January 20th of 1981. And just a few blocks away from this courthouse now on March 30th of 1981, he was a victim of an assassination attempt. That will be six years from next Monday, and this case goes on and on. At the constables' office, business was going on as usual. His new deputy, Ardith McPherson, had been assigned primarily in her initial period as a computer operator. Let me explain one thing about our constables office. Our downtown constable is Walter Rankin. The other seven constables are scattered all over the county by population groupings there. But they are not around the downtown courthouse complex, which has about five court buildings there that generate all of the court process, the majority of the court process that goes out to the other precincts for service. The new system which we call JIMS... Justice Information Management System... all of the process throughout the county comes into Constable Rankin's office, and it is put onto computers which plays back in 16 justice of the peace courts scattered over the county, 8 constables offices scattered over the county, the district clerk's office and the county clerk's office both across the street from him, as well as juvenile information goes on these same computers there. So that any officer, court or law enforcement who is wanting to know at any particular moment the status of service of process in any of these cases can punch it up on the computer and have the answer right there before him as to what attempts have been made on service, what service has been completed, what service has been rejected because of bad addresses. Anyway, the information is readily available throughout the county, based upon the input by Constable Rankin's office in the first instance before he sends the process out to other officers. Now, when Constable Rankin appointed Ardith McPherson his deputy, he did this under a statute in Texas that says that all of the constable's employees are deputies. He is not authorized to employ clerks, people to answer the telephone, people to do the typing. Everybody that he employs is a deputy constable.
Thurgood Marshall: Is that also the man that sweeps the floor?
Billy E. Lee: I did not hear you, sir.
Thurgood Marshall: Does that also include the man that sweeps the floor in the constable's office?
Billy E. Lee: No, sir, it does not.
Thurgood Marshall: Well, how far down does it go?
Billy E. Lee: All right.
Thurgood Marshall: How far down?
Billy E. Lee: The man who sweeps the floor in the constable's office is not employed by the constable. He's employed by commissioners' court who takes care of all of the courthouses. But everybody who the constable appoints--
Thurgood Marshall: Does the woman involved here do other than what every other computer operator does in the United States: feed material in by punching keys? Is that what she does? She punches keys, like a typewriter?
Billy E. Lee: --That is--
Thurgood Marshall: And that's all she does?
Billy E. Lee: --No, we won't concede that, Your Honor. She also was--
Thurgood Marshall: What else does she do other than punch keys?
Billy E. Lee: --All right. For one hour a day at least, she answered the public telephones coming into--
Thurgood Marshall: What else?
Billy E. Lee: --That is all at this point, because this was still in her probation period, and she had not yet actually learned that job yet.
Thurgood Marshall: I mean, you're talking about the whole county is interested in what she does and all? You don't really mean that, do you? All she does is what... How many people punch computers in Harris County, would you estimate?
Billy E. Lee: All right. It's going to have to be a far out estimate, Your Honor. I would make a guess that we probably have three to five hundred people who do it.
Thurgood Marshall: Wouldn't it be closer to thousands?
Billy E. Lee: It may very well be, Your Honor.
Thurgood Marshall: I think we have a misunderstanding about the importance of the job. And that's what I want to hear about. What does she do that's so important to the county, to the state and to the United States?
Billy E. Lee: All right. Under our Texas law, the constable employed her. She is a deputy constable, in spite of the fact that all she does is punch in information on her computer. If she did not do that part of the constable's duties, he himself would have to take his time and punch in that information there because that assignment was made for him to handle these computer inputs in the first instance there. So one of his deputies, Ms. McPherson, was doing the constable's duties to the extent that she was just punching in information.
Antonin Scalia: I guess it's a lucky thing then that the constable is not himself responsible for keeping the courthouse clean, which could have been the case. I mean, you--
Billy E. Lee: Which could have been the case, yes, sir. That is right, because he would then--
Antonin Scalia: --Then your argument would indeed extend to the man who swept the floor; right?
Billy E. Lee: --He would have employed a deputy who swept the floor unless there were some changes in the law that authorized him to employ the floor sweepers.
Antonin Scalia: And you would be making the same argument here--
Billy E. Lee: Yes, sir.
Antonin Scalia: --because that man had the name of deputy?
Billy E. Lee: That's right. All right. Now, we have a constitutional oath in Texas that every officer elected must take, and every officer appointed must take, and Deputy McPherson took this oath that says that she will uphold the office of deputy constable, and that she will uphold and support the Constitution and laws of the United States and of the State of Texas. Now, only the constable was elected. In the metropolitan area that is Harris County, which has about 20 percent of the entire population of the state of Texas in our county lines, the constable himself cannot possibly do all of the duties that the legislature has placed upon him by statute to do. For one thing, at the time of this case we had about 160,000 pieces of process come through his office for channeling out to the other constables.
William H. Rehnquist: Mr. Lee, is this process, is it civil; is it criminal; is it both?
Billy E. Lee: It is both, Your Honor. It is generally civil process, because his office is the incoming mailbox for all of the other 253 counties in Texas, and for counties and courts outside of the state, that send process into Harris County. It is the originator, the square one there that makes all of the rest of the... and he has more computer agents, I would say, in his one office than all of the other seven constables put together there. But that does not mean that he does all of the work there. He just is the initial inputter. But because of the greater litigation area in his precinct there, he probably handles about 25 percent of all of the service process, and the other seven handle 75 percent of it. All right. Now, this court and other courts throughout the state and the nation have consistently taken the viewpoint that the constable is an officer of the court. He is a law enforcement officer. In Texas we have a Code of Criminal Procedure that says that he is a conservator of the peace, that he is charged with suppressing crime. Now in this particular instance when the radio in the computer room announced that an attempt was made to assassinate President Reagan, it apparently has failed, and he is being pushed into a car and leaving the scene. And--
Antonin Scalia: Mr. Lee, was this lady fired because of what she said or because of what she believed? Do we know that? I mean, suppose when she was called in by the constable and asked whether she had said that, she said, "Yes, I said it".
Billy E. Lee: --She was, Your Honor. She was called in by the constable.
Antonin Scalia: I know. Now, suppose she had said, "Yeah, I said it, but, you know, I didn't really mean anything by it. "
Billy E. Lee: Yes, sir.
Antonin Scalia: Do we know whether she would have been fired? I mean, conceivably you might fire her anyway I mean, he might have said, "Well, you know, you shouldn't talk like that, whether you mean it or not. " "I don't want that kind of talk in my law enforcement agency, whether you mean it or not. " "It shows poor judgment, and you're fired. " Was that the basis for his dismissal?
Billy E. Lee: Your Honor, I would say not, based upon two trials that we have been through in the District Court. In the District Court, Captain LeVrier heard Ardith McPherson say that--
Antonin Scalia: --she really meant it?
Billy E. Lee: --No. He asked her that. He said that if they tried for the President again, she hoped next time they got him. And he went over to her, and he said, "You don't really mean that". She said, "Yes, I do mean it. " So then through channels that information was carried to Constable Rankin who called her into his office with Captain LeVrier there, and he asked her, he said, "I have herd of a statement that you have just made. " "Did you make that statement? " She said yes, she did mean it, and--
Antonin Scalia: Well, we don't really know that. Was there a finding to that effect?
Billy E. Lee: --There was a finding by the District Court in both trials, Your Honor.
Antonin Scalia: That what?
Billy E. Lee: That she had said it and that she meant it.
Sandra Day O'Connor: No, that isn't correct, is it? Tell me where you find in the District Court findings a decision either way on whether she meant it. I didn't find it. Can you-- --I didn't either. --tell me what finding it is?
Billy E. Lee: In the end of the trial on the second trial, the retrial, the Court announced his decision, his findings of fact and conclusions of law from the bench. And in those he does make the declaration there in the joint appendix, back toward the back end of it, that he... Sir?
Thurgood Marshall: What page?
Billy E. Lee: I do not--
Antonin Scalia: 25a, he says, "I don't believe she meant nothing, as she said here today. " "And I don't believe that those words were mere political hyperbole. "
Billy E. Lee: --Yes, Your Honor.
Antonin Scalia: That's all he says. Well, certainly the Court of Appeals for the Fifth Circuit thought the District Court made a finding, because on page 38a, they say, "For the purpose of applying the Pickering/Connick balancing test, we accept the district court's conclusion that McPherson actually hoped that the President would be assassinated. "
Billy E. Lee: Yes, sir. I'm pleased for all the help I can get, Your Honor. [Laughter] I will cede the rest of my time to the Solicitor General.
William H. Rehnquist: Thank you, Mr. Lee. We'll hear now from you, Mr. Nager.
Glen D. Nager: Thank you, Mr. Chief Justice. May it please the Court, this Court has noted on more than one occasion that the State's interests as an employer in regulating the expressive activities of its employees differs quite significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The Court has upheld various restrictions on the expressive activities of public employees, restrictions that could not have been applied to the citizenry in general. For example, in Snepp versus United States, this Court upheld the right of the CIA to screen its employees' publications, a system of prior restraint which simply could not have been applied to the citizenry in general.
Antonin Scalia: Mr. Nager, that's what we have here, a firing because of what she said, not because of the kind of person she was; right? It wasn't that "I don't want somebody here who hopes that the President will get assassinated the next time successfully. " but rather, "I don't want somebody who says that kind of thing. "
Glen D. Nager: The short answer is yes, although I'm not quite sure you can separate them out--
Antonin Scalia: We can.
Glen D. Nager: --by what the constable said. In fact, as we read the record, he terminated her for expressing her approval of the violation of a serious criminal law; that is, he did fire her for what she said. I'm not quite sure there's another way she could have said the same thing, that he could have just fired her for the manner of her expression. But we do think he did fire her for the substance of what she said; that is, that if they go for him again, I hope they get him.
William H. Rehnquist: Is there reason to think she would have been fired if she had said that, but then it turned out that she didn't mean it?
Glen D. Nager: The record doesn't reflect what Constable Rankin's thinking was on that subject, Justice Rehnquist.
Antonin Scalia: It was important to him. He asked her that, didn't he?
Glen D. Nager: Yes, he did, which shows that he was trying to find out whether or not she was an individual who indeed believed that it was okay to assassinate... attempt to assassinate the President, to violate criminal laws. Now, we think that this Court's decision emphasized two things in public employees' speech cases. The first is that the Government's interest as an employer differ from those it has when it acts in its capacity as a sovereign. And, in addition, employment-related sanctions, while placing a burden on First Amendment rights to be sure, are a much lesser burden than general criminal or civil sanctions. Thus, the court has upheld the right of the Government to place reasonable restrictions on the expressive activities of public employees, in order to promote substantial governmental interests. And we think that this is precisely such a case. Respondent in this case was an employee of a law enforcement agency, and she expressed her approval and desire for an assassination of the President. The law enforcement agency for which she worked is by definition committed to the enforcement of criminal laws.
Sandra Day O'Connor: Would the result be different in some other kind of public officer, Mr. Nager? Let's say the clerk's office as opposed to the constable's?
Glen D. Nager: The clerk's office of the court system of Harris County?
Sandra Day O'Connor: Yeah, where papers are filed.
Glen D. Nager: We believe the answer would be the same, Justice O'Connor, although the twist on the theory would be slightly different. Here, the constable's office is a law enforcement agency; and the expressive activity is directly inconsistent with the principal function of that office. That is, it is a law enforcement agency. The clerk's office would not be, quote, a law enforcement agency. But it does have an interest in having employees who won't engage in expressive activity inconsistent with its function. And when an employee--
Sandra Day O'Connor: What about the garbage service?
Glen D. Nager: --When an employee expresses approval of a violation of a serious criminal law, that is indicative of the type of expressive activity that that employee will engage in as regards to the function of the agency with which she is employed. So while we recognize it's a more difficult case, it's not a case that the Court has to decide today. But we still would be willing in the proper circumstances to defend it before this Court.
Thurgood Marshall: What about the street clean-up?
Glen D. Nager: Once again, Justice Marshall, it is our position before this Court that--
Thurgood Marshall: Well, just what harm was done to anybody by her statement? I have limited this to anybody.
Glen D. Nager: --The harm in this case is to the Government's interest in promoting the public understanding and respect for the laws of the constables.
Thurgood Marshall: For uniformity of thought?
Glen D. Nager: No, Justice Marshall, not for uniformity of thought, but for understanding about the requirements of the law. A law enforcement agency doesn't just engage in day-to-day enforcement activity. It doesn't just go out on the street and arrest people and put them in jail. A law enforcement agency is responsible--
Thurgood Marshall: You tell me; I don't know.
Glen D. Nager: --A law enforcement agency is responsible for teaching the public about the requirements of the law, for emphasizing their importance.
Thurgood Marshall: This statement was made in an office where nobody was there but employees of that office, and it doesn't even show how many were there. It only shows there were three there. Now, that wrecks the world?
Glen D. Nager: It is correct... it is correct that this statement was made in an office. It was made after an announcement on the radio that there had been an attempt on the President's life. Her comment was overheard by a deputy... by a senior deputy constable who asked her if she meant it. By her testimony, all she did was smile at him. By his testimony, she said she meant it.
Thurgood Marshall: At that stage what was the harm done?
Glen D. Nager: The harm at that stage was she had indicted that she would approve of violations of the criminal law. The constable has to make judgments about which employees--
John Paul Stevens: Mr. Nager, may I? To the extent you emphasize the enforcement of the law, supposing this had been a radio report of the almost-killing of Gadhafi, and she said, "I hope the next time they get him? "
Glen D. Nager: --I'm not aware of a law which prohibits--
John Paul Stevens: Would you make the same argument in that case?
Glen D. Nager: --I'm sorry. I couldn't understand.
John Paul Stevens: Would you make the same argument... Say, it wasn't Gadhafi. Say some other unpopular figure, Al Capone. They tried to shoot him, but they missed. And she said, "I hope next time they get him. "
Glen D. Nager: Yes. Our argument would be the same.
John Paul Stevens: It would be the same?
Glen D. Nager: In fact, it's somewhat--
John Paul Stevens: So we can disregard the fact that the President of the United States is involved?
Glen D. Nager: --Yes. In fact, it's somewhat unfortunate for us, being in a posture before this Court, that, in fact, it was a statement about the President of the United States because it makes it a less attractive case for the Government to be enforcing. It's substantial--
Antonin Scalia: Well, I don't know. I mean, surely the worse the crime that she's willing to endorse, the worse it looks for her. I mean, you--
Glen D. Nager: --I was comparing one life with another.
Antonin Scalia: --know, "I hope he gets away with that $2. " doesn't amount to the same thing as killing somebody; right?
Glen D. Nager: Absolutely.
Antonin Scalia: And likewise, I presume, killing Al Capone isn't quite as bad as killing the President in the scheme of what is considered to be a terrible... I mean, what amounts to an attempt to bring down the government; right?
Glen D. Nager: You're absolutely right, Justice Scalia. All I was doing in responding to Justice Stevens' question was suggesting in terms of the Government--
John Paul Stevens: You would make the same argument. You would say the statement was unprotected, if she said, "I hope the next time they try to kill Al Capone, they kill him. " you would make precisely the same argument? It wouldn't be quite as strong. That's what Justice Scalia pointed out.
Glen D. Nager: --Yes.
John Paul Stevens: And you'd even make the argument, if she said, "The next time they try to steal a loaf of bread, I hope he gets away with it? "
Glen D. Nager: To the extent that she is approving a violation of a criminal law--
John Paul Stevens: She could be fired for that.
Glen D. Nager: --and that stealing a loaf of bread would constitute a violation of the criminal law, yes. The governmental interest here is in having employees of law enforcement agencies not demean, not suggest that it is okay to violate criminal laws. The Government... and it is a little odd for us to be standing here pointing to Justice Brandeis' famous dissent in Homestead... but, nevertheless, the Government is a teacher. The law enforcement agency is the principal teacher about the importance of complying with and respecting the laws that--
John Paul Stevens: Well, following up on Justice Marshall just a minute: Who are the pupils in this case?
Glen D. Nager: --The pupils in this case are her fellow employees, one.
Thurgood Marshall: Was she ever told all of that?
Glen D. Nager: Was she ever told--
Thurgood Marshall: That she is a minion of the law and somebody that stands for this and that and should conduct herself in such a fashion as to not bring disrepute upon this office. Was she ever told that?
Glen D. Nager: --The record doesn't reflect it.
Thurgood Marshall: Well, don't you need it in order to argue it?
Glen D. Nager: No, I don't believe it does. Chief Justice Rehnquist's--
Thurgood Marshall: Yet you assume it.
Glen D. Nager: --opinion in Arnett versus Kennedy specifically says... in a context of public employees cases, we don't need a detailed code of procedure and substantive rules.
Thurgood Marshall: I didn't say "detailed". I just said "a fact". The first time that she was ever told that it was wrong to do this was when the man asked her. That was the first time in this record.
Glen D. Nager: That is true. That is what the record reflects, and we have no reason to believe otherwise.
Thurgood Marshall: You know there wasn't any other reason.
Glen D. Nager: Yes, Justice Marshall, that's true. Again, though--
Thurgood Marshall: Suppose she had advocated, "Somebody ought to shoot that man that bumped my fender this morning? "
Glen D. Nager: --We would say that she could be discharged for that.
Thurgood Marshall: Really?
Glen D. Nager: Yes. Once again, we don't believe that it--
Thurgood Marshall: How many have been discharged for that in Texas, in Houston?
Glen D. Nager: --I do not know the answer to that.
Thurgood Marshall: You can't name one?
Glen D. Nager: I certainly cannot. Once again, we think that the government interest here is in promoting public respect for and understanding of the law. Let me point out that the Court of Appeals understood that in this case. It said that a government agency is entitled to employ only those individuals who have no serious reservations about the mission of the agency. And it also said that a law enforcement agency is entitled to carry out its mission through officers who do not favor political assassination. But the Court of Appeals said that for some reason, because she performed ministerial duties, that the Government had no interest in discharging her. We suggest that that just misunderstands the governmental interest here. The governmental interest here does not relate to the particular duties that she was performing. Rather, it extends beyond them. It extends to every employee of the agency, because it extends to the core function of the agency; that is, of enforcing the law, of promoting respect for the law, teaching the public about the law. Her speech demeans that, undermines it, and is inconsistent with the function that the agency is attempting to perform. In our brief we gave--
Antonin Scalia: If she were an employee in the Interior Department, that would be okay then; right?
Glen D. Nager: --"That" being?
Antonin Scalia: The same thing. The news on the radio, there's an attempted assassination on the President. She says, "I hope they get him next time. "
Glen D. Nager: Now, as I tried to... in response to Justice O'Connor's question... say, although we think it would be a different case, we would be willing to defend it on the theory that by expressing approval of such a serious act as a violation of a criminal law as approval of murder, that, in fact, that would be an indicator that a public employer could use to acknowledge and determine that this employee of the Interior Department is not one who would carry out to the best of his or her abilities the functions of the Interior Department.
John Paul Stevens: May I ask another question? We started out with President Roosevelt. I remember that there was an assassination attempt on him. Supposing four years later, an employee said, "I think the country would be better off if they had gotten him? "
Glen D. Nager: That's a good question, and I think it will point out, hopefully, a good part of our answer is that the issue is: Does the expressive activity indicate that that employee is one who will act inconsistently with the function of the agency today, such that if the statement could be reasonably understood--
John Paul Stevens: That the employee would act... You think this is a suggestion that this person would try to kill the President?
Glen D. Nager: --No, no, not at all.
John Paul Stevens: Oh?
Glen D. Nager: We did not at all suggest that this individual was making any threat on the life of the President or that she was actively encouraging anyone. All we're suggesting is: The question is whether or not her speech can be reasonably understood as expressing approval of an illegal act--
John Paul Stevens: You're changing the hypothetical a little. "Not only do I think the government... the country would be better off if they had gotten him four years ago, but I've thought about it a great deal, and I really wish they had hit him. "
Glen D. Nager: --We think that... I'd have to say that we would think that she could be discharged for that. Let me point out... before my time is up... that while we made this argument in our brief about what the governmental interest is here, in 70 pages of briefing by Respondent and their amicus, there is not anything which answers this argument, that this is the governmental interest that the constable testified he was trying to promote and that, in fact, it is a reasonable judgment for the public employer to discharge an employee for engaging in this type of expressive activity.
Byron R. White: Well, didn't the Court of Appeals say something more?
Glen D. Nager: It focused on the--
Byron R. White: It says there has to be... Her statement not only has to be inconsistent with the mission of the agency, but inconsistent with her role in the agency's function.
Glen D. Nager: --Right. And what we're suggesting is--
Byron R. White: And there was this low-level employee, the Court of Appeals said to balances... that she should be able to make this kind of a political speech.
Glen D. Nager: --And we're suggesting that this is, (a), not an appropriate inquiry for the court to be making, that that is something in the discretion of the employer, the employer could take into account in determining whether to reprimand her or discharge her, or whatever. But the employer is, in fact, promoting the government's interests when, no matter what level the employee is at, the employee engages in expressive activity that is inconsistent with the message that the agency is supposed to be sending to the public. That any employee of the EEOC, for example, who expresses her approval of acts of employment discrimination undermines the EEOC's efforts to teach the public and to get the public to appreciate the importance of complying with the employment discrimination laws. That any employee of the Internal Revenue Service who expresses approval of tax fraud or tax evasion or noncompliance is undermining the IRS's efforts to get the public to understand the importance of voluntarily complying with laws. Our legal order is one that depends critically on the public appreciating and voluntarily complying with the law and of respecting the law. When the law enforcement agency itself... any of its employees starts expressing their approval for the violations of those laws, it undermines the agency's ability to accomplish the function with which it is assigned. Unless the Court has further questions.
William H. Rehnquist: Thank you, Mr. Nager. We'll hear now from you, Mr. Cutler.
Lloyd N. Cutler: Mr. Chief Justice, and may it please the Court. It's common grounds in this case that Mrs. McPherson's remarks were not among the classes of speech which can constitutionally be branded as illegal. They were not libelous or obscene or fighting words or a threat of or an incitement to assassination or the violent overthrow of the government. There are really two disputed issues. The first is whether these remarks were on a serious matter of public concern and, therefore, on the highest rung of the ladder of First Amendment values. The second is whether the balancing test of the Pickering/Connick line of cases, which both sides accept for weighing the speech of public employees. Mrs. McPherson's right to speak is outweighed by the governmental interests in the efficiency of the public service. Under the Connick test we accept that for the Fifth Circuit's views to be upheld in this Court, we must prevail on both of those issues. I'd like to turn first--
Byron R. White: For instance, if a newspaperman heard about this statement and interviewed her on television and said, "Do you really think that you would like to see him killed the next time? " "Yes". You wouldn't think she could be fired then?
Lloyd N. Cutler: --I think that's a different case, Justice White. This is--
Byron R. White: Well, it may be, but what's your answer? Do you know?
Lloyd N. Cutler: --My answer to that for her position would be that there would still not be a right to fire her. On the other hand, if she were someone who faced the public... an FBI officer, a cop on the beat... perhaps it's a different case.
Byron R. White: Well, he says, "What's your job"? "I'm a deputy constable". "You're sworn to obey the law? " "Yes". "Do you think the President should be killed? "
Lloyd N. Cutler: Well, that was not what she said. I don't think that's close to what she said, Justice White. Perhaps that gets to the question of whether she was addressing an issue of public concern. And I take it, although the Solicitor General at one point seems to dispute this, there is no doubt that the context in form and content of her remarks are something that this Court will judge for itself, because this is a mixed question of constitutional law and fact in a First Amendment case.
Sandra Day O'Connor: Do we accept the case, Mr. Cutler, on the statement of the Court of Appeals that McPherson actually hoped the President would be assassinated?
Lloyd N. Cutler: The Court of Appeals didn't quite say that except arguendo, Justice O'Connor.
Sandra Day O'Connor: The Court says, "We accept the District Court's conclusion that McPherson actually hoped that the President would be assassinated. "
Lloyd N. Cutler: Yes. But then they went on to say--
Sandra Day O'Connor: And do we decide the case on that basis?
Lloyd N. Cutler: --They go on to say, a sentence or so later, that whether her remark was a comment on the President's policies or an actual wish for her assassination, it was still on a matter of public concern; and that's what I'd like to come to right now.
William H. Rehnquist: That the desirability of assassinating the President is a matter of public concern?
Lloyd N. Cutler: Not the desirability of assassinating the President, but expressing a disapproval of the President's comments in terms as strong and as ill-advised as, "If they try it again, I hope they get him. " that that is a comment, and it's the only way it can be understood is as a comment on the President's policies. It happened to be that the conversation occurred at the very moment after the first news of the attempt which, under the first report, was unsuccessful. I think it's perfectly clear that if she had been in a discussion of the President's policies, the Administration's policies, the day before, she never would have uttered that comment. If it had been weeks later, it's most unlikely that she would have uttered that comment. It was a comment that was simply evoked by the circumstances, the shock of the report which everybody feels. And once she heard that, she used that figure of speech in expressing her disapproval. When you make an examination of what she actually said, as... and this is undisputed testimony... she begins by saying, after this first news, "It must have been a black who did it. " to her colleague at the next desk to whom she has since been married. She then says... she makes comments about the President's policies on food stamps, on CETA, on public welfare programs; and her colleague at the next desk agrees with her. And then she says... and that happens to be at the very moment when Captain LeVrier is walking up... "The next time they try it, I hope they get him. " In its context, there isn't the slightest question that that remark is a remark in the course of a discussion of the political... of Administration policies, and that the reference to "if they try it again, I hope they get him. " was clearly something evoked by the emotion of the moment.
Antonin Scalia: Your theory is that any statement, hyperbole or anything else that occurs during the course of a political discussion like that gets special protection; right?
Lloyd N. Cutler: I would say that gets special protection. I would still agree it has to be weighed in a Pickering/Connick balance for a public employee.
Antonin Scalia: You could fire an employee, I take it, who constantly uses profanity, vulgar, obscene language around the office, but not... or arguably not, you'd have to meet a different... a substantially different burden, if he only uses that language in the course of his political discussions?
Lloyd N. Cutler: Well, if he uses obscene language, you said, I believe, Justice Scalia, commonly or regularly that might affect employee morale or efficiency, it might well be someone who went around even in the context of a political discussion--
Antonin Scalia: You're applying the test. All I'm asking you is whether it's a different test. We have to apply one test to vulgarity, obscenity, profanity when it's just used generally. But a totally different test... and we have to see if it's outweighed by some governmental interest... if that's used in the course of a political discussion.
Lloyd N. Cutler: --If it is part of a discussion on a political issue or meant to be an expression on a political expression, it has to be weighed. It may turn out to be obscene, in which case it can be banned.
Antonin Scalia: Why is that? I mean, part of my problem is: I don't understand how broad the definition of the discussion has to be. Why can't we just look at this one sentence? Do we have to expand it to look at the whole conversation? I don't know--
Lloyd N. Cutler: Well, we're now in the context, I take it, of can this discussion be prohibited or punished? Or are you speaking solely of public employees?
Antonin Scalia: --No. I'm talking about whether for purposes of deciding whether this was a part of a statement on a matter for public concern--
Lloyd N. Cutler: --not a political issue.
Antonin Scalia: --we have to look at the whole preceding ten minutes of her conversation or we can't just look at the single sentence?
Lloyd N. Cutler: I think you have to look at the--
Antonin Scalia: If you look at the single sentence, you would acknowledge, I hope, that it is not a matter of public concern, that we don't debate on whether the President should be assassinated or not.
Lloyd N. Cutler: --We certainly don't debate on whether the President should be assassinated, and I deplore myself any such statement.
Antonin Scalia: So if we would only look at one sentence--
Lloyd N. Cutler: A statement, "If they try it again, I hope they get him. " is clearly, by any standard, an expression of her disapproval of the individual. It is not a general endorsement of violence, assassination or anything like that. It's an extreme, immoderate, foolish, excessive comment about a matter of public concern; namely, the policies of that individual.
William H. Rehnquist: --Well, are you suggesting--
Lloyd N. Cutler: And it happens all the time.
William H. Rehnquist: --Are you suggesting, Mr. Cutler, that there's a difference between saying, "I think all sorts of people should be assassinated, and I think President Reagan should be assassinated? "
Lloyd N. Cutler: Yes, I do think there is.
William H. Rehnquist: Where--
Lloyd N. Cutler: If you're still on the issue of whether this is a matter of public concern, it is clearly something, number one, that cannot legally be punished or prohibited. And, number two, if it is with reference to an individual, and there were many similar statements, no doubt at the time of the attempt on Governor George Wallace, at the time of the successful assassination of Dr. Martin Luther King, at the time when Jack Ruby shot Lee Harvey Oswald, there were many, many people--
Antonin Scalia: --Many of which were meant.
Lloyd N. Cutler: --Huh?
Antonin Scalia: Many of which were meant literally.
Lloyd N. Cutler: It may have been meant, but they were expressions, not, "We're all for assassination". They were expressions of how that individual thought about the policies or the actions of the victim. That's what they were.
William H. Rehnquist: Well, then that takes it out of the context of favoring assassination?
Lloyd N. Cutler: I do believe it takes it out of the context of favoring assassination as such. I would remind you also--
Antonin Scalia: Is what you're saying that anybody who favors assassinating someone is disapproving that person? I mean, I'll stipulate that. But doesn't that--
Lloyd N. Cutler: --That's right.
Antonin Scalia: --But the two aren't coextensive. I mean, you can disapprove of someone without favoring that person's assassination.
Lloyd N. Cutler: Of course you can. It is an excessive, immoderate way of making a political statement is what it is.
Antonin Scalia: No. It's--
Lloyd N. Cutler: And it cannot be--
Antonin Scalia: --It isn't a political statement, if you want the person's assassination.
Lloyd N. Cutler: --Well, certainly in the context here, it was a political statement. I believe you began this line of questioning by inquiring, "Do we have to look at all the sentences? " In Claiborne Hardware there was a reference in the long impassioned speech by Mr. Evers, the boycott organizer, in which he said that "If we catch you in those stores which are to be boycotted, we'll break your necks; and there won't be any white policemen around in the middle of the night to help you. " But because it was in the middle of a long impassioned speech, the bulk of which was about promoting the success of the boycott, it was held... just as the remarks in the Watts case were held... to be political hyperbole.
Byron R. White: Yes. But there was no finding there that the statement was actually meant and was seriously made. Here I think you have to face up to the fact that the Court of Appeals sustained the District Court's finding--
Lloyd N. Cutler: There was no finding--
Byron R. White: --and interpreted it that she really meant it, and that she really wished the President would be killed.
Lloyd N. Cutler: --She was expressing at most a hope that if it happened again... she was not urging assassination, she was not threatening it herself most certainly... she was stating her opposition to the President's policies in this extreme and immoderate form, "If they try it again, I hope they get him. "
William H. Rehnquist: Well, the Court of Appeals said that the record supports the District Court's conclusion that McPherson expressed an actual wish for the assassination of the President.
Lloyd N. Cutler: That is correct. But in the very next sentence, as I mentioned, Justice Rehnquist... I think it's the very next paragraph... the Court of Appeals says, in suggesting that that finding is an arguendo finding, that whether she was expressing opposition to the President's policies or an actual wish for his assassination, her remarks--
Byron R. White: Well, we judge the case as though she really meant it and she really had the wish. The Court of Appeals said even if she really wished it, the First Amendment protects her.
Lloyd N. Cutler: --Well, there's no question that--
Byron R. White: Isn't that right?
Lloyd N. Cutler: --That is right. There's no question that the First Amendment protects it from the standpoint of enjoining--
Byron R. White: Protected her from being fired?
Lloyd N. Cutler: --That gets us to the Pickering/Connick balancing test, I think.
Thurgood Marshall: We don't have to go that far, that she intended to kill the President?
Lloyd N. Cutler: I don't believe you have to... I think it is clear this was political hyperbole, and you are obliged, I think, to examine it yourself. It was the fourth or fifth sentence in a series that began, as I said, "It must have been a black who did it. " A discussion of the President's policies, which she and her neighbor at the next desk disapproved, and then this extreme final sentence which happens to be the one that was overheard. May I continue, if I can, with the balancing test issue which I think really is the most important issue? We think that Mrs. McPherson's firing cannot be justified under the Pickering/Connick test. And in asking you to weigh this, bear in mind that there are some 15 million public employees. That's approximately 15 percent of the work force. It's our best guess there are some 5 million law enforcement employees, of whom perhaps one million... that's a figure we know more solidly... are in the criminal justice system. It was not... I hope I have carried you that... properly understood as political hyperbole as in Watts, where the statement, as you'll recall, was... by someone opposed to the draft. "If they put a rifle in my hands, the first man I hope to get in my sights is LBJ. "
William H. Rehnquist: Do you think Watts is still good law?
Lloyd N. Cutler: I would hope Watts is still good law, Justice. I believe it still is, and I believe that's conceded by the government, at least which concedes you could not criminalize this statement. It regards Watts simply as a construction of the statute about threats to the President, but I think an examination of the opinion would clearly show it's on constitutional grounds. It was not as in Connick one remark on a matter of public concern among many other remarks which were about the affairs of the office. It was a private, rather than a public, remark. She didn't stand up on a table and make this remark. She didn't have a poster behind her desk or anything like that. That, as you held in the Givhan case, the fact that it was private, does not take it out of the category of comment on a matter of public concern. Most public speech in this country is private.
Antonin Scalia: Well, it wasn't really private. I mean, she may have thought it was private, but that was part of--
Lloyd N. Cutler: It happened to get overheard by one person; that's quite right.
Antonin Scalia: --By Captain LeVrier, who was offended by it, and it might have offended other co-workers. I mean, that shows some--
Lloyd N. Cutler: That's what I... I believe I'll show in a moment, Justice Scalia, she was not fired on the ground that it offended anyone else, or that it affected discipline or morale in the office. It was the constable's loss of confidence in her that was his basis for firing her, and as I'll try to get to in a moment in response to your earlier question to Mr. Lee, it was based more on her beliefs than anything else. In Connick's words it was "speech as a citizen", and not as an employee. The fact that it occurred in the workplace was certainly not a matter of deliberate choice on her part. All of us, when we heard that news, were frozen in place wherever we were and whatever emotional response we had to the event was going to come out wherever we were. It was not intended to, and it did not cause, what Connick called a mini-insurrection in the office. It was private. It wasn't meant to be overheard. It wasn't voicing a grievance as an employee, but a grievance as a citizen. Constable Rankin conceded that it had no effect on office efficiency or discipline, and the Coiurt of Appeals found that. It had nothing to do with office business or the personnel or the mission of the office. There was no other reason for the finding... for the firing on which a court could have relied, as in the Mt. Healthy case. And Rankin conceded that this was the reason. And what he said was, "I did not base my action on whether the work was interrupted or not. " "I based my statement... my action, on a statement that was made to me direct. " "Right then was when I lost confidence in her. " That's at page 86, I think, of the Joint Appendix.
Antonin Scalia: --Well, if you rely on that, then you are conceding that she reaffirmed in the discussion with Rankin, not only that she had said it, but that she meant it, because that's what that testimony refers to? "I said it, and I meant it. "
Lloyd N. Cutler: What the District Court found is by word or deed... The District Court never found, as I think Justice O'Connor pointed out earlier, that she said, "Yes, I meant it".
Antonin Scalia: No. But that excerpt that you just read from Rankin's testimony--
Lloyd N. Cutler: That's his testimony.
Antonin Scalia: --That's his testimony.
Lloyd N. Cutler: That's right.
Antonin Scalia: If you rely on it, you have to accept it for the good and the bad.
Lloyd N. Cutler: I rely on it to... Well, the District Court made its findings. I don't think it's important whether she said, "Yes, I mean it", or not. And we do have a finding below that by word or deed, she meant it. I ask you: Looking at the conversation in context, though, to conclude that even if she meant it, it was still political hyperbole of the type which Mr. Evers in the Claiborne Hardware case... where I don't believe, and I was in that case... there was any issue as to whether he meant it, other than as political hyperbole. The critical point there was: It was part of a much larger speech, and that no violent acts occurred after the speech was made. So that a finding of intimidation in the lower courts... unlawful intimidation was not justified. The fact that the constable's office is a law enforcement agency, rather than some other place of public employment, we don't think changes the balance here.
Sandra Day O'Connor: Mr. Cutler, this was a probationary employee. Do you suppose there's any reason at all why the employer of a probationary employee could not determine that the employer would keep as employees in the office only people the employer could trust and had confidence in, that they would be sensible people who could deal properly with the public in a public office, and then judge... make that judgment on the basis of perfectly protected speech, but conclude the fact that the person thinks the way the employee thinks and says what she says indicates to me that person doesn't merit a permanent job? What's the matter with that?
Lloyd N. Cutler: Well, to begin with, Perry against Sindermann holds even for employees lacking tenure... I believe that's a teacher's case... that there is an economic expectation even for probationary employees. But, in addition, to allow all of the supervisors of public employees in the country a broad discretion to fire people, even probationary people, based on their speech on a matter of public concern is giving a very wide discretion. There are considerable doubts about any statute... let us say a modern version of the Alien and Sedition--
Sandra Day O'Connor: My question is whether speech on a matter of public concern can evidence character traits of the employee that would justify the employer from saying, "I don't think this person merits permanent employment. " Do you think that can't be done in the public sector?
Lloyd N. Cutler: --I would say, Justice O'Connor, that it is a very dangerous power to grant just on the distinction between the probationary employee and the employee or this person, let us say, a month later after her probationary status was over. Any form of government sanction, based on judgments about the beliefs of an employee, at the very least ought to be supported by statutes and rules, as Professor Bickel said. The only thing that saved the Civil Service rules in Arnett against Kennedy was a long period of interpretation and regulations so that employees knew what to expect, for to allow all the supervisors in the country to decide on the basis of speech on a matter of public concern, "I don't like the President, I disapprove of his policies. " to go get somebody else, I should think would be a very dangerous thing. You have ruled several times in Elrod against Burns, in Branti against Finkel, where you had public employees who were not on probationary status. You had a deputy sheriff in Elrod. You had a public defender in Branti. You said in neither case could they be fired on the basis of their political beliefs.
Sandra Day O'Connor: Can they be fired because they exhibit character traits and an inability to reason adequately to serve in the job of public employment, even though that judgment is made in part by speech that could be protected?
Lloyd N. Cutler: If it is made on the basis of their suitability to hold the particular job that they are doing, I would say yes. If this same remark had been made... let us say by an FBI employee in Justice White's case on television, I would say yes, that person could be fired. But for the janitor, for the computer punch operator... and there are millions of them around the country, and we know--
Antonin Scalia: What about a secretary in the clerk's office out here who, you know, says that? "I hope the next time they go for the President, they get him. "
Lloyd N. Cutler: --Well, I would think you would at least deliberate, Justice Scalia, and learn the full text of the conversation and have something, for example, in the area--
Antonin Scalia: If it comes up in the same kind of a conversation, do you think that--
Lloyd N. Cutler: --It may very well be that this Court is a place of confidential... it certainly is a confidential place which takes you out of this line of cases, and you might be free to do it there. She was not performing a confidential job or a policymaking job.
Byron R. White: --Well, Mr. Cutler--
Lloyd N. Cutler: Suppose the janitor in the court had said it.
Byron R. White: --This lady was on probation, but if she were hired permanently, wouldn't sooner or later she perform the other duties of a deputy constable, like serving process and--
Lloyd N. Cutler: I doubt it very much. You have the testimony of Mr. Jackson in the record. He served in that office for three or four years. And so far as I know, he never had any job different in terms of confidentiality than the job he had... that they both had at this time. I think the last points I would like to make are that the Solicitor General's professionalism test and the constable's test of losing confidence are not constitutionally adequate justifications for firing, based on speech relating to matters of public concern. And I would submit to you that no statute containing that sort of a vague standard, "whenever the supervisor loses confidence", or finds that in his judgment the employee is unprofessional would be sustained as to a matter of speech on a subject of public concern. Suppose that you had a new alien and sedition law which was limited to the 15 million public employees, or even the 5 million law enforcement employees. And the only sanction for speaking ill of the President or the Government or bringing them into disrepute was loss of job. Could a statute like that possibly be sustained today? I would submit to you, in New York Times against Sullivan at least that it could not. Approving Mrs. McPherson's discharge, it seems to us, opens up an Orwellian prospect of standardless firing by supervisors for speech on matters of public concern, for political expressions and even beliefs. We think it would go far beyond any First Amendment case that you have ever decided, even those written under the stress of the war and the McArthur era. And even those cases where you sustained a restriction on speech and belief, almost all of them were based on some statute or regulation passed by the majority of some Legislature in setting some standard, rather than on the discretion, without any regulation at all, of hundreds or thousands of supervisors.
Antonin Scalia: --Most of those cases involve criminal sanctions, however, rather than--
Lloyd N. Cutler: Some.
Antonin Scalia: --what kind of employees a public employer must retain.
Lloyd N. Cutler: Some, like American Communications Workers against Dowd, just involve simply loss of a union position and nothing more. Justice Jackson--
William H. Rehnquist: That was upheld in Dowd.
Lloyd N. Cutler: --It was upheld over Justice Jackson's dissent. And I would just like to close by reading one sentence from his dissent, or one paragraph. "I think that under our system, it is time enough for the law to lay hold of the citizen when he acts illegally or in some rare circumstances where his thoughts are given illegal utterance. " I think we must let--
William H. Rehnquist: Your time has expired, Mr. Cutler. The case is submitted.