Borough of Duryea v. Guarnieri , 131 S. Ct. 2488 ( 2011 )

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BOROUGH OF DURYEA, PENNSYLVANIA, ET AL. v.
GUARNIERI
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 09–1476. Argued March 22, 2011—Decided June 20, 2011
After petitioner borough fired respondent Guarnieri as its police chief,
he filed a union grievance that led to his reinstatement. When the
borough council later issued directives instructing Guarnieri how to
perform his duties, he filed a second grievance, and an arbitrator or
dered that some of the directives be modified or withdrawn. Guarni
eri then filed this suit under 42 U. S. C. §1983, alleging that the di
rectives were issued in retaliation for the filing of his first grievance,
thereby violating his First Amendment “right . . . to petition the Gov
ernment for a redress of grievances”; he later amended his complaint
to allege that the council also violated the Petition Clause by denying
his request for overtime pay in retaliation for his having filed the
§1983 suit. The District Court instructed the jury, inter alia, that the
suit and the grievances were constitutionally protected activity, and
the jury found for Guarnieri. Affirming the compensatory damages
award, the Third Circuit held that a public employee who has peti
tioned the government through a formal mechanism such as the fil
ing of a lawsuit or grievance is protected under the Petition Clause
from retaliation for that activity, even if the petition concerns a mat
ter of solely private concern. In so ruling, the court rejected the view
of every other Circuit to have considered the issue that, to be pro
tected, the petition must address a matter of public concern.
Held: A government employer’s allegedly retaliatory actions against an
employee do not give rise to liability under the Petition Clause unless
the employee’s petition relates to a matter of public concern. The
Third Circuit’s conclusion that the public concern test does not limit
public employees’ Petition Clause claims is incorrect. Pp. 4–19.
(a) A public employee suing his employer under the First Amend
2 BOROUGH OF DURYEA v. GUARNIERI
Syllabus
ment’s Speech Clause must show that he spoke as a citizen on a mat
ter of public concern. Connick v. Myers, 461 U. S. 138, 147. Even
where the employee makes that showing, however, courts balance his
employee’s right to engage in speech against the government’s inter
est in promoting the efficiency and effectiveness of the public services
it performs through its employees. Pickering v. Board of Ed. of
Township High School Dist. 205, Will Cty., 391 U. S. 563, 568. Al
though cases might arise in which special Petition Clause concerns
would require a distinct analysis, public employees’ retaliation claims
do not call for this divergence. The close connection between the
rights of speech and petition has led Courts of Appeals other than the
Third Circuit to apply the public concern test to public employees’ Pe
tition Clause claims. This approach is justified by the substantial
common ground in the definition and delineation of these rights. Pp.
4–8.
(b) The substantial government interests that justify a cautious
and restrained approach to protecting public employees’ speech are
just as relevant in Petition Clause cases. A petition, no less than
speech, can interfere with government’s efficient and effective opera
tion by, e.g., seeking results that “contravene governmental policies
or impair the proper performance of governmental functions,” Gar
cetti v. Ceballos, 547 U. S. 410, 419. A petition taking the form of a
lawsuit against the government employer may be particularly disrup
tive, consuming public officials’ time and attention, burdening their
exercise of legitimate authority, and blurring the lines of accountabil
ity between them and the public. Here, for example, Guarnieri’s at
torney invited the jury to review myriad details of government deci
sionmaking. It is precisely to avoid this sort of intrusion into internal
governmental affairs that this Court has held that, “while the First
Amendment invests public employees with certain rights, it does not
empower them to ‘constitutionalize the employee grievance.’ ” Id., at
420. Interpreting the Petition Clause to apply even where matters of
public concern are not involved would be unnecessary, or even dis
ruptive, when there is already protection for the public employees’
rights to file grievances and litigate. Adopting a different rule for Pe
tition Clause claims would provide a ready means for public employ
ees to circumvent the public concern test’s protections and aggravate
potential harm to the government’s interests by compounding the
costs of complying with the Constitution. Pp. 8–13.
(c) Guarnieri’s claim that applying the public concern test to the
Petition Clause would be inappropriate in light of the private nature
of many petitions for redress lacks merit. Although the Clause un
doubtedly has force and application in the context of a personal
grievance addressed to the government, petitions to the government
Cite as: 564 U. S. ____ (2011) 3
Syllabus
assume an added dimension when they seek to advance political, so
cial, or other ideas of interest to the community as a whole. The
Clause’s history reveals the frequent use of petitions to address a
wide range of political, social, and other matters of great public im
port and interest. Pp. 13–17.
(d) The framework used to govern public employees’ Speech Clause
claims, when applied to the Petition Clause, will protect both the
government’s interests and the employee’s First Amendment right. If
a public employee petitions as an employee on a matter of purely pri
vate concern, his First Amendment interest must give way, as it does
in speech cases. San Diego v. Roe, 543 U. S. 77, 82–83. If he peti
tions as a citizen on a matter of public concern, his First Amendment
interest must be balanced against the government’s countervailing
interest in the effective and efficient management of its internal af
fairs. Pickering, supra, at 568. If that balance favors the public em
ployee, the First Amendment claim will be sustained. If the balance
favors the employer, the employee’s First Amendment claim will fail
even though the petition is on a matter of public concern. As under
the Speech Clause, whether a petition relates to a matter of public
concern will depend on its “content, form, and context . . . , as re
vealed by the whole record.” Connick, supra, at 147–148, n. 7. The
forum in which a petition is lodged will also be relevant. See Snyder
v. Phelps, 562 U. S. ___, ___. A petition filed with a government em
ployer using an internal grievance procedure in many cases will not
seek to communicate to the public or to advance a political or social
point of view beyond the employment context. Pp. 17–18.
(e) Absent full briefs by the parties, the Court need not consider
how the foregoing framework would apply to this case. P. 19.
364 Fed. Appx. 749, vacated and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and GINSBURG, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ.,
joined. THOMAS, J., filed an opinion concurring in the judgment.
SCALIA, J., filed an opinion concurring in the judgment in part and dis
senting in part.
Cite as: 564 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–1476
_________________
BOROUGH OF DURYEA, PENNSYLVANIA, ET AL.,
PETITIONERS v. CHARLES J. GUARNIERI
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 20, 2011]
JUSTICE KENNEDY delivered the opinion of the court.
Among other rights essential to freedom, the First
Amendment protects “the right of the people . . . to peti­
tion the Government for a redress of grievances.” U. S.
Const., Amdt. 1. This case concerns the extent of the
protection, if any, that the Petition Clause grants public
employees in routine disputes with government employ­
ers. Petitions are a form of expression, and employees
who invoke the Petition Clause in most cases could invoke
as well the Speech Clause of the First Amendment. To
show that an employer interfered with rights under the
Speech Clause, the employee, as a general rule, must show
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 that test applies when the
employee invokes the Petition Clause.
Alone among the Courts of Appeals to have addressed
the issue, the Court of Appeals for the Third Circuit has
held that the public concern test does not limit Petition
Clause claims by public employees. For the reasons stated
below, this conclusion is incorrect.
2 BOROUGH OF DURYEA v. GUARNIERI
Opinion of the Court
I
Charles Guarnieri filed a union grievance challenging
his termination as chief of police for the borough of
Duryea, a town of about 4,600 persons in northeastern
Pennsylvania. His grievance proceeded to arbitration
pursuant to the police union collective-bargaining agree­
ment. The arbitrator found that the borough council,
Duryea’s legislative body and the entity responsible for
Guarnieri’s termination, committed procedural errors in
connection with the termination; and the arbitrator also
found that Guarnieri engaged in misconduct, including
“attempting to intimidate Council members.” App. 37, 38.
The arbitrator ordered Guarnieri reinstated after a disci­
plinary suspension. Id., at 38.
Upon Guarnieri’s return to the job, the council issued 11
directives instructing Guarnieri in the performance of his
duties. The council’s attorney explained that the council
“wanted to be sure that the chief understood what was
going to be expected of him upon his return.” Tr. 19:12–14
(Apr. 16, 2008). One directive prohibited Guarnieri from
working overtime without the council’s “express permis­
sion.” App. 59, ¶1. Another indicated that “[t]he police
car is to be used for official business only.” Id., at 60, ¶9.
A third stated that the “Duryea municipal building is a
smoke free building” and that the “police department is
not exempt.” Id., at 61, ¶10. Guarnieri testified that,
because of these and other directives, his “coming back
wasn’t a warm welcome feeling.” Tr. 65:7–8 (Apr. 15,
2008). Guarnieri filed a second union grievance challeng­
ing the directives. The arbitrator instructed the council to
modify or withdraw some of the directives on the grounds
that they were vague, interfered with the authority of
the mayor, or were contrary to the collective-bargaining
agreement.
Guarnieri filed this lawsuit against the borough, the
borough council, and individual members of the council
Cite as: 564 U. S. ____ (2011) 3
Opinion of the Court
under 42 U. S. C. §1983. Guarnieri claimed that his first
union grievance was a petition protected by the Petition
Clause of the First Amendment, and he alleged that the
directives issued upon his reinstatement were retaliation
for that protected activity.
After this suit was filed, the council denied a request
by Guarnieri for $338 in overtime. The United States
Department of Labor investigated and concluded that
Guarnieri was entitled to be paid. The council offered
Guarnieri a check for the amount, but Guarnieri refused
to accept it. Instead, Guarnieri amended his complaint to
encompass the denial of overtime. Guarnieri alleged that
his §1983 lawsuit was a petition and that the denial of
overtime constituted retaliation for 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 grievances were not on a matter of public
concern. The case proceeded to a jury. Guarnieri’s attor­
ney 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 con­
trol you.” Tr. 53:24–25 (Apr. 17, 2008). The District Court
instructed the jury that the lawsuit and union grievances
were “protected activity . . . under the constitution,” and
that the jury could find defendants liable if it found an
adequate connection between the protected activity and
the alleged retaliation. Id., at 61:17–20; 62. The jury
found in favor of Guarnieri. The jury awarded $45,000 in
compensatory damages and $24,000 in punitive damages
for the directives, as well as $358 in compensatory dam­
ages and $28,000 in punitive damages for the denial of
overtime. The District Court awarded $45,000 in attor­
ney’s fees and denied defendants’ renewed motion for
judgment as a matter of law.
Defendants appealed on the ground that Guarnieri’s
4 BOROUGH OF DURYEA v. GUARNIERI
Opinion of the Court
grievances and lawsuit did not address matters of public
concern. Courts outside the Third Circuit have held that
allegedly retaliatory actions by government employers
against government employees may not give rise to liabil­
ity under the Petition Clause unless the employee’s peti­
tion related to a matter of public concern. See, e.g., Kirby
v. Elizabeth City, 388 F. 3d 440, 448–449 (CA4 2004);
Tang v. Rhode Island, Dept. of Elderly Affairs, 163 F. 3d 7,
11–12 (CA1 1998); White Plains Towing Corp. v. Patter
son, 991 F. 2d 1049, 1059 (CA2 1993). These courts rely
on a substantial overlap between the rights of speech and
petition to justify the application of Speech Clause pre­
cedents to Petition Clause claims. They reason that,
whether the grievance is considered under the Speech
Clause or the Petition Clause, the government employer is
entitled to take adverse action against the employee
unless the dispute involves a matter of public concern.
Rejecting that view, the Court of Appeals here affirmed
the award of compensatory damages, although it found
insufficient evidence to sustain the award of punitive
damages. The Court of Appeals concluded that “ ‘a public
employee who has petitioned the government through a
formal mechanism such as the filing of a lawsuit or griev­
ance is protected under the Petition Clause from retalia­
tion for that activity, even if the petition concerns a matter
of solely private concern.’ ” 364 Fed. Appx. 749, 753 (CA3
2010) (quoting Foraker v. Chaffinch, 501 F. 3d 231, 236
(CA3 2007)). The decision of the Court of Appeals was
consistent with the rule adopted and explained by that
court in San Filippo v. Bongiovanni, 30 F. 3d 424, 442
(1994). This Court granted certiorari to resolve the con­
flict in the Courts of Appeals. 562 U. S. ___ (2010).
II
When a public employee sues a government employer
under the First Amendment’s Speech Clause, the em­
Cite as: 564 U. S. ____ (2011) 5
Opinion of the Court
ployee must show that he or she spoke as a citizen on a
matter of public concern. Connick v. Myers, 461 U. S. 138,
147 (1983). If an employee does not speak as a citizen, or
does not address a matter of public concern, “a federal
court is not the appropriate forum in which to review the
wisdom of a personnel decision taken by a public agency
allegedly in reaction to the employee’s behavior.” Ibid.Even if an employee does speak as a citizen on a matter of
public concern, the employee’s speech is not automatically
privileged. Courts balance the First Amendment 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.” Pickering v. Board of
Ed. of Township High School Dist. 205, Will Cty., 391
U. S. 563, 568 (1968).
This framework “reconcile[s] the employee’s right to
engage in speech and the government employer’s right to
protect its own legitimate interests in performing its
mission.” San Diego v. Roe, 543 U. S. 77, 82 (2004) (per
curiam). There are some rights and freedoms so funda­
mental to liberty that they cannot be bargained away in a
contract for public employment. “Our responsibility is to
ensure that citizens are not deprived of [these] fundamen­
tal rights by virtue of working for the government.” Con
nick, supra, at 147; see also Keyishian v. Board of Regents
of Univ. of State of N. Y., 385 U. S. 589, 605–606 (1967).
Nevertheless, a citizen who accepts public employment
“must accept certain limitations on his or her freedom.”
Garcetti v. Ceballos, 547 U. S. 410, 418 (2006). The gov­
ernment has a substantial interest in ensuring that all of
its operations are efficient and effective. That interest
may require broad authority to supervise the conduct of
public employees. “When someone who is paid a salary so
that she will contribute to an agency’s effective operation
begins to do or say things that detract from the agency’s
effective operation, the government employer must have
6 BOROUGH OF DURYEA v. GUARNIERI
Opinion of the Court
some power to restrain her.” Waters v. Churchill, 511
U. S. 661, 675 (1994) (plurality opinion). Restraints are
justified by the consensual nature of the employment
relationship and by the unique nature of the government’s
interest.
This case arises under the Petition Clause, not the
Speech Clause. The parties litigated the case on the prem­
ise that Guarnieri’s grievances and lawsuit are petitions
protected by the Petition Clause. This Court’s precedents
confirm that the Petition Clause protects the right of in­
dividuals to appeal to courts and other forums estab­
lished by the government for resolution of legal disputes.
“[T]he right of access to courts for redress of wrongs is an
aspect of the First Amendment right to petition the gov­
ernment.” Sure-Tan, Inc. v. NLRB, 467 U. S. 883, 896–
897 (1984); see also BE&K Constr. Co. v. NLRB, 536 U. S.
516, 525 (2002); Bill Johnson’s Restaurants, Inc. v. NLRB,
461 U. S. 731, 741 (1983); California Motor Transport Co.
v. Trucking Unlimited, 404 U. S. 508, 513 (1972). Al­
though retaliation by a government employer for a public
employee’s exercise of the right of access to the courts may
implicate the protections of the Petition Clause, this case
provides no necessity to consider the correct application of
the Petition Clause beyond that context.
Although this case proceeds under the Petition Clause,
Guarnieri just as easily could have alleged that his em­
ployer retaliated against him for the speech contained
within his grievances and lawsuit. That claim would have
been subject 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 decision of the Court of
Appeals in San Filippo, supra, at 443, Guarnieri was
deemed entitled to protection from retaliation so long as
his petition was not a “sham.” Under that rule, defen­
dants and other public employers might be liable under
Cite as: 564 U. S. ____ (2011) 7
Opinion of the Court
the Petition Clause even if the same conduct would not
give rise to liability under the Speech Clause. The ques­
tion presented by this case is whether the history and
purpose of the Petition Clause justify the imposition of
broader liability when an employee invokes its protection
instead of the protection afforded by the Speech Clause.
It is not necessary to say that the two Clauses are iden­
tical in their mandate or their purpose and effect to ac­
knowledge that the rights of speech and petition share
substantial common ground. This Court has said that the
right to speak and the right to petition are “cognate
rights.” Thomas v. Collins, 323 U. S. 516, 530 (1945); see
also Wayte v. United States, 470 U. S. 598, 610, n. 11
(1985). “It was not by accident or coincidence that the
rights to freedom in speech and press were coupled in a
single guaranty with the rights of the people peaceably to
assemble and to petition for redress of grievances.” Tho
mas, 323 U. S., at 530. Both speech and petition are
integral to the democratic process, although not necessar­
ily in the same way. The right to petition allows citizens
to express their ideas, hopes, and concerns to their gov­
ernment and their elected representatives, whereas the
right to speak fosters the public exchange of ideas that is
integral to deliberative democracy as well as to the whole
realm of ideas and human affairs. Beyond the political
sphere, both speech and petition advance personal expres­
sion, although the right to petition is generally concerned
with expression directed to the government seeking re­
dress of a grievance.
Courts should not presume there is always an essential
equivalence in the two Clauses or that Speech Clause
precedents necessarily and in every case resolve Petition
Clause claims. See ibid. (rights of speech and petition are
“not identical”). Interpretation of the Petition Clause
must be guided by the objectives and aspirations that
underlie the right. A petition conveys the special concerns
8 BOROUGH OF DURYEA v. GUARNIERI
Opinion of the Court
of its author to the government and, in its usual form, re­
quests action by the government to address those con­
cerns. See Sure-Tan Inc., supra, at 896–897.
This Court’s opinion in 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 McDonald held only that speech contained
within a petition is subject to the same standards for
defamation and libel as speech outside a petition. In those
circumstances the Court found “no sound basis for grant­
ing greater constitutional protection to statements made
in a petition . . . than other First Amendment expres­
sions.” Id., at 485. There may arise cases where the
special concerns of the Petition Clause would provide a
sound basis for a distinct analysis; and if that is so, the
rules and principles that define the two rights might differ
in emphasis and formulation.
As other Courts of Appeals have recognized, however,
claims of retaliation by public employees do not call for
this divergence. 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 employees. As will be explained further, this ap­
proach is justified by the extensive common ground in the
definition and delineation of these rights. The considera­
tions that shape the application of the Speech Clause to
public employees apply with equal force to claims by those
employees under the Petition Clause.
The substantial government interests that justify a
cautious and restrained approach to the protection of
speech by public employees are just as relevant when
public employees proceed under the Petition Clause.
Petitions, no less than speech, can interfere with the
efficient and effective operation of government. A petition
may seek to achieve results that “contravene governmen­
Cite as: 564 U. S. ____ (2011) 9
Opinion of the Court
tal policies or impair the proper performance of govern­
mental functions.” Garcetti, 547 U. S., at 419. Govern­
ment must have authority, in appropriate circumstances,
to restrain employees who use petitions to frustrate pro­
gress towards the ends they have been hired to achieve. A
petition, like other forms of speech, can bring the “mission
of the employer and the professionalism of its officers into
serious disrepute.” Roe, 543 U. S., at 81. A public em­
ployee might, for instance, use the courts to pursue per­
sonal vendettas or to harass members of the general
public. That behavior could cause a serious breakdown in
public confidence in the government and its employees.
And if speech or petition were directed at or concerned
other public employees, it could have a serious and detri­
mental effect on morale.
When a petition takes the form of a lawsuit against the
government employer, it may be particularly disruptive.
Unlike speech of other sorts, a lawsuit demands a re­
sponse. Mounting a defense to even frivolous claims may
consume the time and resources of the government em­
ployer. Outside the context of public employment, this
Court has recognized that the Petition Clause does not
protect “objectively baseless” litigation that seeks to “ ‘in­
terfere directly with the business relationships of a
competitor.’ ” Professional Real Estate Investors, Inc. v.
Columbia Pictures Industries, Inc., 508 U. S. 49, 60–61
(1993) (quoting Eastern Railroad Presidents Conference v.
Noerr Motor Freight, Inc., 365 U. S. 127, 144 (1961)). In
recognition of the substantial costs imposed by litigation,
Congress has also required civil rights plaintiffs whose
suits are “frivolous, unreasonable, or without foundation”
to pay attorney’s fees incurred by defendants. Christians
burg Garment Co. v. EEOC, 434 U. S. 412, 421 (1978); see
also Fed. Rule Civ. Proc. 11 (providing sanctions for claims
that are “presented for [an] improper purpose,” frivolous,
or lacking evidentiary support). The government likewise
10 BOROUGH OF DURYEA v. GUARNIERI
Opinion of the Court
has a significant interest in disciplining public employees
who abuse the judicial process.
Unrestrained application of the Petition Clause in the con-
text of government employment would subject a wide
range of government operations to invasive judicial super­
intendence. Employees may file grievances on a variety of
employment matters, including working conditions, pay,
discipline, promotions, leave, vacations, and terminations.
See Brief for National School Boards Association as
Amicus Curiae 5. Every government action in response
could present a potential federal constitutional issue.
Judges and juries, asked to determine whether the gov­
ernment’s actions were in fact retaliatory, would be re­
quired to give scrutiny to both the government’s response
to the grievance and the government’s justification for its
actions. This would occasion review of a host of collateral
matters typically left to the discretion of public officials.
Budget priorities, personnel decisions, and substantive
policies might all be laid before the jury. This would raise
serious federalism and separation-of-powers concerns. It
would also consume the time and attention of public offi­
cials, burden the exercise of legitimate authority, and blur
the lines of accountability between officials and the public.
This case illustrates these risks and costs. Guarnieri’s
attorney invited the jury to review myriad details of gov­
ernment decisionmaking. She questioned the council’s
decision to issue directives in writing, rather than orally,
Tr. 66 (Apr. 14, 2008); the council’s failure to consult the
mayor before issuing the directives, id., at 105 (Apr. 15,
2008); the amount of money spent to employ “Philadelphia
lawyers” to defend Guarnieri’s legal challenges, id., at
191–193:7–10 (Apr. 14, 2008); 152–153 (Apr. 16, 2008);
and the wisdom of the council’s decision to spend money to
install Global Positioning System devices on police cars,
id., at 161–162 (same). Finally, the attorney invited the
jury to evaluate the council’s decisions in light of an emo­
Cite as: 564 U. S. ____ (2011) 11
Opinion of the Court
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 into
internal governmental affairs that this Court has held
that, “while the First Amendment invests public employ­
ees with certain rights, it does not empower them to ‘con­
stitutionalize the employee grievance.’ ” Garcetti, supra, at
420 (quoting Connick, 461 U. S., at 154).
If the Petition Clause were to apply even where matters
of public concern are not involved, that would be unneces­
sary, or even disruptive, when there is already protection
for the rights of public employees to file grievances and to
litigate. The government can and often does adopt statu­
tory and regulatory mechanisms to protect the rights of
employees against improper retaliation or discipline, while
preserving important government interests. Cf. Garcetti,
supra, at 425 (noting a “powerful network of legislative
enactments”). Employees who sue under federal and state
employment laws often benefit from generous and quite
detailed antiretaliation provisions. See, e.g., Pa. Stat.
Ann., Tit. 43, §1101.1201(a)(4) (Purdon 2009); §1101.1302.
These statutory protections are subject to legislative revi­
sion and can be designed for the unique needs of State,
local, or Federal Governments, as well as the special
circumstances of particular governmental offices and
agencies. The Petition Clause is not an instrument for
public employees to circumvent these legislative enact­
ments when pursuing claims based on ordinary workplace
grievances.
In light of the government’s interests in the public
employment context, it would be surprising if Petition
Clause claims by public employees were not limited as
necessary to protect the employer’s functions and respon­
sibilities. Even beyond the Speech Clause, this Court has
explained that “government has significantly greater
leeway in its dealings with citizen employees than it does
12 BOROUGH OF DURYEA v. GUARNIERI
Opinion of the Court
when it brings its sovereign power to bear on citizens at
large.” Engquist v. Oregon Dept. of Agriculture, 553 U. S.
591, 599 (2008); see also NASA v. Nelson, 562 U. S. ___ ,
___ (2011) (slip op., at 12). The government’s interest in
managing its internal affairs requires proper restraints on
the invocation of rights by employees when the workplace
or the government employer’s responsibilities may be af­
fected. There is no reason to think the Petition Clause
should be an exception.
The public concern test was developed to protect these
substantial government interests. Adoption of a different
rule for Petition Clause claims would provide a ready
means for public employees to circumvent the test’s pro­
tections. Consider Sheila Myers, who was the original
plaintiff in Connick. She circulated “a questionnaire
soliciting the views of her fellow staff members” on various
office matters. 461 U. S., at 141. The Court held that
Myers’ claim for retaliation failed the public concern test
because the questionnaire was “most accurately character­
ized as an employee grievance 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, and
destroy close working relationships.” Ibid. These con­
cerns would be no less significant in the context of a for­
mal grievance. Employees should not be able to evade the
rule articulated in the Connick case by wrapping their
speech in the mantle of the Petition Clause.
Articulation of 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 different rule for each First Amendment
claim would require employers to separate petitions from
other speech in order to afford them different treatment;
Cite as: 564 U. S. ____ (2011) 13
Opinion of the Court
and that, in turn, would add to the complexity and ex­
pense of compliance with the Constitution. Identifying peti­
tions might be easy when employees employ formal griev­
ance procedures, but the right to petition is not limited
to petitions lodged under formal procedures. See, e.g.,
Brown v. Louisiana, 383 U. S. 131 (1966). Indeed, the
employee in Connick could have made a colorable argu­
ment that her questionnaire ought to be viewed as a peti­
tion for redress of grievances.
Guarnieri claims application of the public concern test
to the Petition Clause would be inappropriate in light of
the private nature of many petitions for redress of griev­
ances. The Petition Clause undoubtedly does have force
and application in the context of a personal grievance
addressed to the government. See, e.g., Trainmen v. Vir
ginia ex rel. Virginia State Bar, 377 U. S. 1 (1964); Tho
mas, 323 U. S., at 530–531. At the founding, citizens
petitioned on a wide range of subjects, including matters
of both private and public concern. Petitions to the colo­
nial legislatures concerned topics as diverse as debt ac­
tions, estate distributions, divorce proceedings, and re­
quests for modification of a criminal sentence. Higginson,
A Short History of the Right to Petition Government for
the Redress of Grievances, 96 Yale L. J. 142, 146 (1986).
Although some claims will be of interest only to the indi­
vidual 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
necticut, 401 U. S. 371 (1971). Outside the public em­
ployment context, constitutional protection for petitions
does not necessarily turn on whether those petitions relate
to a matter of public concern.
There is, however, no merit to the suggestion that the
public concern test cannot apply under the Petition Clause
because the majority of petitions to colonial legislatures
addressed matters of purely private concern. In analogous
14 BOROUGH OF DURYEA v. GUARNIERI
Opinion of the Court
cases under the Speech Clause, this Court has noted the
“Constitution’s special concern with threats to the right of
citizens to participate in political affairs,” Connick, supra,
at 145, even though it is likely that, in this and any other
age, most speech concerns purely private matters. The
proper scope and application of the Petition Clause like­
wise cannot be determined merely by tallying up petitions
to the colonial legislatures. Some effort must be made to
identify the historic and fundamental principles that led
to the enumeration of the right to petition in the First
Amendment, among other rights fundamental to liberty.
Petitions to the government assume an added dimension
when they seek to advance political, social, or other ideas
of interest to the community as a whole. Petition, as a
word, a concept, and an essential safeguard of freedom, is
of ancient significance in the English law and the Anglo-
American legal tradition. See, e.g., 1 W. Blackstone,
Commentaries *143. The right to petition applied to peti­
tions from nobles to the King, from Parliament to the
King, and from the people to the Parliament, and it con­
cerned both discrete, personal injuries and great matters
of state.
The right to petition traces its origins to Magna Carta,
which confirmed the right of barons to petition the King.
W. McKechnie, Magna Carta: A Commentary on the Great
Charter of King John 467 (rev. 2d ed. 1958). The Magna
Carta itself was King John’s answer to a petition from the
barons. Id., at 30–38. Later, the Petition of Right of 1628
drew upon centuries of tradition and Magna Carta as a
model for the Parliament to issue a plea, or even a de­
mand, that the Crown refrain from certain actions. 3 Car.
1, ch. 1 (1627). The Petition of Right stated four principal
grievances: taxation without consent of Parliament; arbi­
trary imprisonment; quartering or billeting of soldiers;
and the imposition of martial law. After its passage by
both Houses of Parliament, the Petition received the
Cite as: 564 U. S. ____ (2011) 15
Opinion of the Court
King’s assent and became part of the law of England. See
S. Gardiner, The First Two Stuarts and the Puritan Revo­
lution, 1603–1660, pp. 60–61 (1886). The Petition of Right
occupies a place in English constitutional history super­
seded in importance, perhaps, only by Magna Carta itself
and the Declaration of Right of 1689.
The following years saw use of mass petitions to address
matters of public concern. See 8 D. Hume, History of
England from the Invasion of Julius Caesar to the Revolu­
tion in 1688, p. 122 (1763) (“Tumultuous petitioning . . .
was an admirable expedient . . . for spreading discontent,
and for uniting the nation in any popular clamour”). In
1680, for instance, more than 15,000 persons signed a
petition regarding the summoning and dissolution of Par­
liament, “one of the major political issues agitating the
nation.” Knights, London’s ‘Monster’ Petition, 36 Histori­
cal Journal 39, 40–43 (1993). Nine years later, the Decla­
ration of Right listed the illegal acts of the sovereign and
set forth certain rights of the King’s subjects, one of which
was the right to petition the sovereign. It stated that “it
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 listing other specific grievances and
wrongs, it complained, “In every stage of these Oppres­
sions We have Petitioned for Redress in the most humble
terms: Our repeated Petitions have been answered only by
repeated injury.” The Declaration of Independence ¶30.
After independence, petitions on matters of public con­
cern continued to be an essential part of contemporary
debates in this country’s early history. Two years before
the adoption of the Constitution, James Madison’s Memo­
rial and Remonstrance against Religious Assessments, an
important document in the history of the Establishment
16 BOROUGH OF DURYEA v. GUARNIERI
Opinion of the Court
Clause, was presented to the General Assembly of the Com­
monwealth of Virginia as a petition. See 1 D. Lay-
cock, Religious Liberty: Overviews and History 90 (2010);
Arizona Christian School Tuition Organization v.
Winn, 563 U. S. ___ , ___ (2011) (slip op., at 12–13). It
attracted over 1,000 signatures. Laycock, supra, at 90,
n. 153. During the ratification debates, Antifederalists
circulated petitions urging delegates not to adopt the
Constitution absent modification by a bill of rights. Boyd,
Antifederalists and the Acceptance of the Constitution:
Pennsylvania, 1787–1792, 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. Miller,
Arguing About Slavery (1995). Petitions allowed partici­
pation in democratic governance even by groups excluded
from the franchise. See Mark, The Vestigial Constitution:
The History and Significance of the Right to Petition, 66
Ford. L. Rev. 2153, 2182 (1998). For instance, petitions by
women seeking the vote had a role in the early woman’s
suffrage movement. See Cogan & Ginzberg, 1846 Petition
for Woman’s Suffrage, New York State Constitutional
Convention, 22 Signs 427, 437–438 (1997). The right to
petition is in some sense the source of other fundamental
rights, for petitions have provided a vital means for citi­
zens to request recognition of new rights and to assert
existing rights against the sovereign.
Petitions to the courts and similar bodies can likewise
address matters of great public import. In the context of
the civil rights movement, litigation provided a means for
“the distinctive contribution of a minority group to the
ideas and beliefs of our society.” NAACP v. Button, 371
U. S. 415, 431 (1963). Individuals may also “engag[e] in
litigation as a vehicle for effective political expression and
association, as well as a means of communicating useful
Cite as: 564 U. S. ____ (2011) 17
Opinion of the Court
information to the public.” In re Primus, 436 U. S. 412,
431 (1978). Litigation on matters of public concern may
facilitate the informed public participation that is a cor­
nerstone of democratic society. It also allows individuals
to pursue desired ends by direct appeal to government
officials charged with applying the law.
The government may not misuse its role as employer
unduly to distort this deliberative process. See Garcetti,
547 U. S., at 419. Public employees are “the members of a
community most likely to have informed and definite
opinions” about a wide range of matters related, directly
or indirectly, to their employment. Pickering, 391 U. S., at
572. Just as the public has a right to hear the views of
public employees, the public has a right to the benefit
of those employees’ participation in petitioning activity.
Petitions may “allow the public airing of disputed facts”
and “promote the evolution of the law by supporting the
development of legal theories,” NLRB, 536 U. S., at 532(internal quotation marks omitted), and these and other
benefits may not accrue if one class of knowledgeable and
motivated citizens is prevented from engaging in petition­
ing activity. When a public employee seeks to participate,
as a citizen, in the process of deliberative democracy,
either through speech or petition, “it is necessary to regard
the [employee] as the member of the general public he
seeks to be.” Pickering, supra, at 574.
The framework used to govern Speech Clause claims by
public employees, when applied to the Petition Clause,
will protect both the interests of the government and the
First Amendment right. If a public employee petitions as
an employee on a matter 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. When a
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 the
18 BOROUGH OF DURYEA v. GUARNIERI
Opinion of the Court
government in the effective and efficient management of
its internal affairs. Pickering, supra, at 568. If that
balance favors the public employee, the employee’s First
Amendment claim will be sustained. If the interference
with the government’s operations is such that the balance
favors the employer, the employee’s First Amendment
claim will fail even though the petition is on a matter of
public concern.
As under the Speech Clause, whether an employee’s
petition relates to a matter of public concern will depend
on “the content, form, and context of [the petition], as
revealed by the whole record.” Connick, 461 U. S., at 147–
148, and n. 7. The forum 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) (slip op., at 8–9). A peti­
tion filed with an employer using an internal grievance
procedure in many cases will not seek to communicate to
the public or to advance a political or social point of view
beyond the employment context.
Of course in one sense the public may always be inter­
ested in how government officers are performing their
duties. But as the Connick and Pickering test has evolved,
that will not always suffice to show a matter of public
concern. A petition that “involves nothing more than a
complaint about a change in the employee’s own duties”
does not relate to a matter of public concern and accord­
ingly “may give rise to discipline without imposing any
special burden of justification on the government em­
ployer.” United States v. Treasury Employees, 513 U. S.
454, 466 (1995). The right of a public employee under the
Petition Clause is a right to participate as a citizen,
through petitioning activity, in the democratic process. It
is not a right to transform everyday employment disputes
into matters for constitutional litigation in the federal
courts.
Cite as: 564 U. S. ____ (2011)
19
Opinion of the Court
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 the context of this case. The
parties did not address the issue in the opening brief or
the response, and the United States did not address the
issue in its brief as amicus curiae. In their reply brief,
petitioners suggest that this Court should address the
issue and resolve 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 by the parties.
The judgment of the Court of Appeals is vacated, and
the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.
Cite as: 564 U. S. ____ (2011) 1
THOMAS, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–1476
_________________
BOROUGH OF DURYEA, PENNSYLVANIA, ET AL.,
PETITIONERS v. CHARLES J. GUARNIERI
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 20, 2011]
JUSTICE THOMAS, concurring in the judgment.
For the reasons set forth by JUSTICE SCALIA, I seriously
doubt that lawsuits are “petitions” within the original
meaning of the Petition Clause of the First Amendment.
See post, at 2–3 (opinion concurring in judgment in part
and dissenting in part). Unreasoned statements to the
contrary in this Court’s prior decisions do not convince me
otherwise. Like the Court, however, I need not decide that
question today because “[t]he parties litigated the case on
the premise that Guarnieri’s grievances and lawsuit are
petitions protected by the Petition Clause.” Ante, at 6.
I also largely agree with JUSTICE SCALIA about the
framework for assessing public employees’ retaliation
claims under the Petition Clause. The “public concern”
doctrine of Connick v. Myers, 461 U. S. 138 (1983), is
rooted in the First Amendment’s core protection of speech
on matters of public concern and has no relation to the
right to petition. See post, at 3–7. I would not import that
test into the Petition Clause. Rather, like JUSTICE SCALIA,
I would hold that “the Petition Clause protects public
employees against retaliation for filing petitions unless
those petitions are addressed to the government in its
capacity as the petitioners’ employer, rather than its ca
pacity as their sovereign.” Post, at 7.
But I would not end the analysis after determining that
2 BOROUGH OF DURYEA v. GUARNIERI
THOMAS, J., concurring in judgment
a petition was addressed to the government as sovereign.
Recognizing “the realities of the employment context,” we
have held that “government has significantly greater lee
way in its dealings with citizen employees than it does
when it brings its sovereign power to bear on citizens at
large.” Engquist v. Oregon Dept. of Agriculture, 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
against the government’s interest as an employer in the ef-
fective and efficient management of its internal affairs.
Cf. Garcetti v. Ceballos, 547 U. S. 410, 419 (2006) (noting
that employees “speaking as citizens about matters of pub
lic concern” still must “face . . . speech restrictions that
are necessary for their employers to operate efficiently and
effectively”); United States v. Treasury Employees, 513
U. S. 454, 492 (1995) (Rehnquist, C. J., dissenting) (“In
conducting this balance [in the Speech Clause context],
we consistently have given substantial weight to govern
ment employers’ reasonable predictions of disruption, even
when the speech involved was on a matter of public con
cern”); O’Connor v. Ortega, 480 U. S. 709, 721–722 (1987)
(plurality opinion) (balancing the “the realities of the
workplace” against the “legitimate privacy interests of
public employees” to conclude that a warrant requirement
would “seriously disrupt the routine conduct of business”
and “be unduly burdensome”). In assessing a retaliation
claim under the Petition Clause, courts should be able to
conclude that, in instances when the petition is especially
disruptive, as some lawsuits might be, the balance of
interests may weigh in favor of the government employer.
Applying this framework, I would vacate the judgment
and remand. The Court of Appeals erred with respect to
both Guarnieri’s union grievance and his 42 U. S. C. §1983suit. First, even assuming the grievance was a petition, it
was addressed to the local government in its capacity as
Cite as: 564 U. S. ____ (2011) 3
THOMAS, J., concurring in judgment
Guarnieri’s employer. See post, at 8 (opinion of SCALIA,
J.). Second, Guarnieri addressed his §1983 suit to the
Federal Government in its capacity as sovereign, not to
the local government as his employer. See ibid. But the
Court of Appeals did not consider whether the local gov
ernment’s interest as an employer “in achieving its goals
as effectively and efficiently as possible” nevertheless
outweighs Guarnieri’s interest in petitioning the Federal
Government regarding his local employment. Engquist,
supra, at 598 (internal quotation marks omitted). I would
vacate and remand for the Court of Appeals to conduct
that analysis in the first instance.
Cite as: 564 U. S. ____ (2011) 1
Opinion of SCALIA, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–1476
_________________
BOROUGH OF DURYEA, PENNSYLVANIA, ET AL.,
PETITIONERS v. CHARLES J. GUARNIERI
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 20, 2011]
JUSTICE SCALIA, concurring in the judgment in part and
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 of
individuals to appeal to courts and other forums estab
lished by the government for resolution of legal disputes.”
Ante, at 6. Our first opinion clearly saying that lawsuits
are “Petitions” under the Petition Clause came less than
40 years ago. In California Motor Transport Co. v. Truck
ing Unlimited, 404 U. S. 508 (1972),1 an opinion by Justice
Douglas, the Court asserted that “[t]he right of access to
the courts is indeed but one aspect of the right of petition.”
Id., at 510. As authority it cited two habeas corpus cases,
Johnson v. Avery, 393 U. S. 483 (1969), and Ex parte Hull,
312 U. S. 546 (1941), neither of which even mentioned the
Petition Clause. The assertion, moreover, was pure dic
tum. The holding of California Motor Transport was that
the Noerr-Pennington doctrine, a judicial gloss on the
——————
1 Respondent would agree, since he cited this case in argument as the
earliest. Tr. of Oral Arg. 36. There were, however, three cases in the
1960’s which adverted vaguely to lawsuits as involving the right to
petition. See Mine Workers v. Illinois Bar Assn., 389 U. S. 217, 222–
224 (1967); Trainmen v. Virginia ex rel. Virginia State Bar, 377 U. S. 1,
7 (1964); NAACP v. Button, 371 U. S. 415, 430 (1963).
2 BOROUGH OF DURYEA v. GUARNIERI
Opinion of SCALIA, J.
Sherman Act that had been held to immunize certain
lobbying (legislature-petitioning) activity, did not apply to
sham litigation that “sought to bar . . . competitors from
meaningful access to adjudicatory tribunals,” 404 U. S., at510–512. The three other cases cited by the Court as
holding that lawsuits are petitions, ante, at 6, are all
statutory interpretation decisions construing the National
Labor Relations Act, albeit against the backdrop of the
Petition Clause. See BE&K Constr. Co. v. NLRB, 536
U. S. 516, 534–536 (2002); Sure-Tan, Inc. v. NLRB, 467
U. S. 883, 896–897 (1984) Bill Johnson’s Restaurants, Inc.
v. NLRB, 461 U. S. 731, 741–743 (1983). The Court has
never actually held that a lawsuit is a constitutionally
protected “Petition,” nor does today’s opinion hold that.
The Court merely observes that “[t]he parties litigated the
case on the premise that Guarnieri’s grievances and law
suit are petitions protected by the Petition Clause,” ante,
at 6, and concludes that Guarnieri’s 42 U. S. C. §1983claim would fail even if that premise were correct.
I find the proposition that a lawsuit is a constitutionally
protected “Petition” 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 Government for a redress of grievances.” The
reference to “the right of the people” indicates that the
Petition Clause was intended to codify a pre-existing
individual right, which means that we must look to
historical practice to determine its scope. See District of
Columbia v. Heller, 554 U. S. 570, 579, 592 (2008).
There is abundant historical evidence that “Petitions”
were directed to the executive 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 colonies to petition the King or either House
of Parliament.” Declaration of Rights and Grievances,
Art. 13, reprinted in 1 B. Schwartz, The Bill of Rights: A
Cite as: 564 U. S. ____ (2011) 3
Opinion of SCALIA, J.
Documentary History 195, 198 (1971); it made no mention
of petitions directed to the courts. As of 1781, seven state
constitutions protected citizens’ right to apply or petition
for redress of grievances; all seven referred only to legisla
tive petitions. See Andrews, A Right of Access 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). The Judiciary Act of 1789 did not grant federal
trial courts jurisdiction to hear lawsuits arising under
federal law; there is no indication anyone ever thought
that this restriction infringed on the right of citizens to
petition the Federal Government for redress of grievances.
The fact that the Court never affirmed a First Amendment
right to litigate until its unsupported dictum in 1972—
after having heard almost 200 years’ worth of lawsuits,
untold numbers of which might have been affected by a
First Amendment right to litigate—should give rise to a
strong suspicion that no such right exists. “[A] universal
and long-established tradition of prohibiting certain con
duct creates a strong presumption that the prohibition is
constitutional: Principles of liberty fundamental enough to
have been embodied within constitutional guarantees are
not readily erased from the Nation’s consciousness.”
Nevada Comm’n on Ethics v. Carrigan, ante, at 4 (internal
quotation marks omitted).
I acknowledge, however, that scholars have made de
tailed historical arguments to the contrary. See, e.g.,
Andrews, supra, at 595–625; Pfander, Sovereign Immu
nity and the Right to Petition: Toward a First Amendment
Right to Pursue Judicial Claims Against the Government,
91 Nw. U. L. Rev. 899, 903–962 (1997). As the Court’s
opinion observes, the parties have not litigated the issue,
and so I agree we should leave its resolution to another
day.
Second, and of greater practical consequence, I disagree
with the Court’s decision to apply the “public concern”
4 BOROUGH OF DURYEA v. GUARNIERI
Opinion of SCALIA, J.
framework of Connick v. Myers, 461 U. S. 138 (1983), to
retaliation claims brought under the Petition Clause. The
Court correctly holds that the Speech Clause and Petition
Clause are not co-extensive, ante, at 7–8. It acknowledges,
moreover, that the Petition Clause protects personal
grievances addressed to the government, ante, at 13. But
that is an understatement—rather like acknowledging
that the Speech Clause protects verbal expression. “[T]he
primary responsibility of colonial assemblies was the
settlement of private disputes raised by petitions.” Hig
ginson, A Short History of the Right to Petition Govern
ment for the Redress of Grievances, 96 Yale L. J. 142, 145
(1986). “[T]he overwhelming majority of First Congress
petitions presented private claims.” 8 Documentary His
tory of the First Federal Congress 1789–1791, p. xviii (K.
Bowling, W. DiGiacomantonio, & C. Bickford eds. 1998).
The Court nonetheless holds that, at least in public em
ployment cases, the Petition Clause and Speech Clause
should be treated identically, so that since the Speech
Clause does not prohibit retaliation against public em
ployees for speaking on matters of private concern, neither
does the Petition Clause. The Court gives two reasons for
this: First, “[a] different rule for each First Amendment
claim would . . . add to the complexity and expense of
compliance with the Constitution” and “would provide a
ready means for public employees to circumvent the test’s
protections,” and second, “[p]etitions to the government
. . . assume an added dimension when they seek to ad
vance political, social, or other ideas of interest to the
community as a whole.” Ante, at 12–14.
Neither reason is persuasive. As to the former: The
complexity of treating the Petition Clause and Speech
Clause separately is attributable to the inconsiderate
disregard for judicial convenience displayed by those who
ratified a First Amendment that included both provisions
as separate constitutional rights. A plaintiff does not
Cite as: 564 U. S. ____ (2011) 5
Opinion of SCALIA, J.
engage in pernicious “circumvention” of our Speech
Clause precedents when he brings a claim premised on a
separate enumerated right to which those precedents are
inapplicable.
As to the latter: Perhaps petitions on matters of public
concern do in some sense involve an “added dimension,”
but that “added dimension” does not obliterate what has
traditionally been the principal dimension of the Petition
Clause. The public-concern limitation makes sense in the
context of the Speech Clause, because it is speech on mat
ters of public concern that lies “within the core of First
Amendment protection.” Engquist v. Oregon Dept. of Agri
culture, 553 U. S. 591, 600 (2008). The Speech Clause
“has its fullest and most urgent application to speech
uttered during a campaign for political office.” Citizens
United v. Federal Election Comm’n, 558 U. S. ___, ___
(2010) (slip op., at 23) (internal quotation marks omitted).
The unique protection granted to political speech is
grounded in the history of the Speech Clause, which “was
fashioned to assure unfettered interchange of ideas for the
bringing about of political and social changes desired by
the people.” Connick, supra, at 145 (internal quotation
marks omitted).
But the mere fact that we have a longstanding tradition
of granting heightened protection to speech of public con
cern does not suggest that a “public concern” requirement
should be written into other constitutional provisions. We
would not say that religious proselytizing is entitled to
more protection under the Free Exercise Clause than
private religious worship because 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 national importance because
such litigation is somehow at the “core of the due process
guarantee.” Likewise, given that petitions to redress
private grievances were such a high proportion of petitions
6 BOROUGH OF DURYEA v. GUARNIERI
Opinion of SCALIA, J.
at the founding—a proportion that is infinitely higher if
lawsuits are considered to be petitions—it is ahistorical to
say that petitions on matters of public concern constitute
“core petitioning activity.” In the Court’s view, 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 that petition; Guarnieri would
have no claim 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 be determined
merely by tallying up petitions to the colonial legisla
tures,” ante, at 14, but that misses the point. The text of
the Petition Clause does not distinguish petitions of public
concern from petitions of private concern. Accordingly,
there should be no doctrinal distinction between them
unless the history or tradition of the Petition Clause justi
fies it. The mere fact that the Court can enumerate sev
eral historical petitions of public importance, ante, at 14–
16, does not establish such a tradition, given that peti
tions for redress of private grievances vastly outnumbered
them. Indeed, the Court’s holding is contrary to this
Court’s historical treatment of the Petition Clause, assum
ing (as the Court believes) that the Clause embraces liti
gation: We have decided innumerable cases establishing
constitutional rights with respect to litigation, and until
today not a one of them has so much as hinted that litiga
tion of public concern enjoys more of those rights than
litigation of private concern. The Court’s belief in the
social importance of public petitions, and its reminiscences
of some of the public-petition greats of yesteryear, ibid., do
not justify the proclamation of special constitutional rights
for public petitions. It is the Constitution that establishes
constitutional rights, not the Justices’ notions of what is
Cite as: 564 U. S. ____ (2011) 7
Opinion of SCALIA, J.
important, or the top numbers on their Petition Hit Pa
rade. And there is no basis for believing that the Petition
Clause gives special protection to public petitions.
Rather than shoehorning the “public concern” doctrine
into a Clause where it does not fit, we should hold that
the Petition Clause protects public employees against re
taliation for filing petitions unless those petitions are ad
dressed to the government in its capacity as the 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 dealings with citi
zen employees than it does when it brings its sovereign
power to bear on citizens at large.” Ante, at 11–12 (quot
ing Engquist, supra, at 599; internal quotation marks
omitted). To apply to the Petition Clause context what we
have said regarding the Speech Clause: When an em
ployee files a petition with the government in its capacity
as his employer, he is not acting “as [a] citize[n] for First
Amendment purposes,” because “there is no relevant
analogue to [petitions] by citizens who are not government
employees.” Garcetti v. Ceballos, 547 U. S. 410, 421, 423–
424 (2006). To be sure, the line between a petition ad
dressed to government as the petitioner’s employer and
one addressed to it as sovereign is not always clear, but it
is no more fuzzy than the line between matters of private
and matters of public concern.2 The criterion I suggest
——————
2 Compare, e.g., Alpha Energy Savers, Inc. v. Hansen, 381 F. 3d 917,
927 (CA9 2004) (testimony concerning claim of employment discrimina
tion by government contractor constituted matter of public concern
because “[l]itigation seeking to expose . . . wrongful governmental
activity is, by its very nature, a matter of public concern”), with Padilla
v. South Harrison R-II School Dist., 181 F. 3d 992, 997 (CA8 1999)
(teacher’s testimony approving sexual relationship between teacher and
minor was matter of private concern because it “does not relate to the
teacher’s legitimate disagreement with a school board’s policies”). And
compare, e.g., Voigt v. Savell, 70 F. 3d 1552, 1560 (CA9 1995) (speech
regarding how judge handled two internal personnel matters was
8 BOROUGH OF DURYEA v. GUARNIERI
Opinion of SCALIA, J.
would largely resolve the legitimate practical concerns
identified by the Court, ante, at 10–12, while recognizing
and giving effect to the difference between the Speech and
Petition Clauses.
Under what I think to be the proper test, the Third
Circuit judgment before us here should be reversed in part
and affirmed in part. The portion of it upholding Guarni
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 the government in its capacity
as the petitioner’s employer. No analogous petitions to the
government could have been filed by private citizens, who
are not even permitted to avail themselves of Guarnieri’s
union grievance procedure. Contrariwise, the portion of
the judgment upholding Guarnieri’s claim of retaliation
for having filed his §1983 claim must be affirmed. Given
that Guarnieri was not an employee of the Federal Gov
ernment, it is impossible to say that the §1983 claim was
addressed to government in its capacity as his employer. I
think it clear that retaliating against a state employee for
writing a letter to his Congressman about his state job
would run afoul of the Petition Clause. Assuming that the
§1983 lawsuit should be treated like a letter to a Con
gressman for Petition Clause purposes—a proposition
which, I again emphasize, is doubtful, but which the par
ties do not dispute in this case—retaliation for having filed
his lawsuit also violates the Clause.
——————
matter of public concern because “[t]he public has an interest in know
ing whether the court treats its job applicants fairly”), with Maggio v.
Sipple, 211 F. 3d 1346, 1353 (CA11 2000) (testimony at hearing con
cerning employee grievance was matter of private concern because it
did “not allege . . . fraud or corruption in [defendant’s] implementation
of its personnel policies and appeal procedures”).