United States v. National Treasury Employees Union
United States v. National Treasury Employees Union
Opinion of the Court
delivered the opinion of the Court.
In 1989 Congress enacted a law that broadly prohibits federal employees from accepting any compensation for making speeches or writing articles. The prohibition applies even when neither the subject of the speech or article nor the person or group paying for it has any connection with the employee’s official duties. We must decide whether that statutory prohibition comports with the Constitution’s command that “Congress shall make no law . . . abridging the freedom of speech.” We hold that it does not.
I
In 1967 Congress authorized the appointment every four years of a special Commission on Executive, Legislative, and Judicial Salaries, whose principal function would be to recommend appropriate levels of compensation for the top positions in all three branches of the Federal Government. Each of the first five Quadrennial Commissions recommended significant salary increases, but those recommendations went largely ignored. The Report of the 1989 Quadrennial Commission, however, was instrumental in leading to the enactment of the Ethics Reform Act of 1989,
The 1989 Quadrennial Commission’s report noted that inflation had decreased the salary levels for senior Government officials, measured in constant dollars, by approximately 35% since 1969. The report
“also found that because their salaries are so inadequate, many members of Congress are supplementing their official compensation by accepting substantial amounts of*458 ‘honoraria’ for meeting with interest groups which desire to influence their votes. Albeit to a less troubling extent, the practice of accepting honoraria also extends to top officials of the Executive and Judicial branches.” Fairness for Our Public Servants: Report of The 1989 Commission on Executive, Legislative and Judicial Salaries vi (Dec. 1988).
Accordingly, the Commission recommended that “salary levels for top officials be set at approximately the same amount in constant dollars” as those in effect in 1969 and further that “Congress enact legislation abolishing the practice of accepting honoraria in all three branches.” Ibid.
The President’s Commission on Federal Ethics Law Reform subsequently issued a report that endorsed the Quadrennial Commission’s views. The President’s Commission recommended enacting a ban on receipt of honoraria “by all officials and employees in all three branches of government.” To Serve With Honor: Report of the President’s Commission on Federal Ethics Law Reform 36 (Mar. 1989). Explaining the breadth of its proposal, it added:
“In recommending this ban, we also recognize, as did the Quadrennial Commission, that the statutory definition of honoraria must be broad enough to— ‘close present and potential loopholes such as receipt of consulting, professional or similar fees; payments for serving on boards; travel; sport, or other entertainment expenses not reasonably necessary for the appearance involved; or any other benefit that is the substantial equivalent of an honorarium.’” Ibid, (quoting Fairness for Our Public Servants, at 24).
Although not adopted in their entirety, the two Commissions’ recommendations echo prominently in the Ethics Reform Act of 1989. Section 703 of that Act provided a 25% pay increase to Members of Congress, federal judges, and
Section 505 of the Ethics Reform Act defined “officer or employee” to include nearly all employees of the Federal Government and “Member” to include any Representative, Delegate, or Resident Commissioner to Congress. The Congressional Operations Appropriations Act, 1992, adopted in 1991,
“(3) The term ‘honorarium’ means a payment of money or any thing of value for an appearance, speech*460 or article (including a series of appearances, speeches, or articles if the subject matter is directly related to the individual’s official duties or the payment is made because of the individual’s status with the Government) by a Member, officer or employee, excluding any actual and necessary travel expenses incurred by such individual (and one relative) to the extent that such expenses are paid or reimbursed by any other person, and the amount otherwise determined shall be reduced by the amount of any such expenses to the extent that such expenses are not paid or reimbursed.” 5 U. S. C. App. § 505(3) (1988 ed., Supp. V).
Section 503(2) of the Ethics Reform Act provides that the statutory provisions governing honoraria for employees of the Executive Branch shall be subject to rules and regulations issued by the Office of Government Ethics (OGE) and administered by designated agency ethics officials. 5 CFR §2636.201 et seq. (1994). OGE’s regulations permit reimbursement of certain expenses associated with appearances, speeches, and articles. The regulations also confine the reach of each of those terms. Thus, a performance using “an artistic, athletic or other such skill or talent” is not an “appearance”; reading a part in a play or delivering a sermon is not a “speech”; and works of “fiction, poetry, lyrics, or script” are not “article[s].” §§ 2636.203(b), (d). The regulations permit teaching a course involving multiple presentations at an accredited program or institution.
The Attorney General may enforce the prohibition against honoraria by a civil action to recover a penalty of not more than the larger of $10,000 or the amount of the honorarium. If an employee has accepted an honorarium in good-faith reliance on an opinion of either the OGE or the ethics officer of her employing agency, she is not subject to the civil penalty. 5 U. S. C. App. §504 (1988 ed., Supp. V).
Two unions and several career civil servants employed full time by various Executive departments and agencies filed suit in the United States District Court for the District of Columbia to challenge the constitutionality of the honoraria ban. Pursuant to a stipulation with the Government, the District Court certified respondent National Treasury Employees Union as the representative of a class composed of all Executive Branch employees “below grade GS-16, who— but for 5 U. S. C. app. 501(b) — would receive ‘honoraria,’ as defined in 5 U. S. C. app. 505(3).” App. 124-125.
Each of the individual respondents alleges that he or she has in the past received compensation for writing or speaking on various topics in full compliance with earlier ethics regulations. The record contains a number of affidavits describing respondents’ past activities that the honoraria ban would now prohibit. A mail handler employed by the Postal Service in Arlington, Virginia, had given lectures on the Quaker religion for which he received small payments that were “not much, but enough to supplement my income in a way that makes a difference.” Id., at 47. An aerospace engineer employed at the Goddard Space Flight Center in Greenbelt, Maryland, had lectured on black history for a fee of $100 per lecture. Id., at 63. A microbiologist at the Food and Drug Administration had earned almost $3,000 per year writing articles and making radio and television appearances reviewing dance performances. Id., at 77. A tax examiner
The District Court granted respondents’ motion for summary judgment, held the statute “unconstitutional insofar as it applies to Executive Branch employees of the United States government,” and enjoined the Government from enforcing the statute against any Executive Branch employee. 788 F. Supp. 4, 13-14 (1992). The court acknowledged that Congress’ interest in promoting “the integrity of, and popular confidence in and respect for, the federal government” is “vital.” Id., at 9. The court also characterized § 501(b) as a content-neutral restriction on the speech of “government employees who, as a condition of their employment, have relinquished certain First Amendment prerogatives ....” Id., at 10. Nevertheless, the court concluded that “regulatory legislation having the effect of suppressing freedom of expression to the slightest degree” could “go no farther than necessary to accomplish its objective.” Ibid. The court found the statute both overinclusive, because it restricts so much speech, and underinclusive, because it prohibits hono-raria for some forms of speech and not others. Id., at 11. Concluding from the legislative history that Congress had been concerned mainly about appearances of impropriety among its own Members, the court found the application of § 501(b) to the parties before it severable from the remainder of the Act.
The Court of Appeals affirmed. 990 F. 2d 1271 (CADC 1993). It noted that, even though § 501(b) prohibits no speech, the denial of compensation places a significant burden on employees. The court held that the Government’s strong, undisputed interest “in protecting the integrity and efficiency of public service and in avoiding even the appearance of impropriety created by abuse of the practice of receiving honoraria” does not justify a substantial burden on speech that does not advance that interest. Id., at 1274. The court emphasized that the Government’s failure as to
Over two dissents, the Court of Appeals denied a petition for rehearing en banc. 3 F. 3d 1555 (1993). We granted certiorari. 511 U. S. 1029 (1994).
Ill
Federal employees who write for publication in their spare time have made significant contributions to the marketplace of ideas. They include literary giants like Nathaniel Hawthorne and Herman Melville, who were employed by the Customs Service; Walt Whitman, who worked for the De
Even though respondents work for the Government, they have not relinquished “the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest.” Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968). They seek compensation for their expressive activities in their capacity as citizens, not as Government employees. They claim their employment status has no more bearing on the quality or market value of their literary output than it did on that of Hawthorne or Melville. With few exceptions, the content of respondents’ messages has nothing to do with their jobs and does not even arguably have any adverse impact on the efficiency of the offices in which they work. They do not address audiences composed of co-workers or supervisors; instead, they write or speak for segments of the general public. Neither the character of the authors, the subject matter of their expression, the effect of the content of their expression on their official duties, nor the kind of audiences they address has any relevance to their employment.
In Pickering and a number of other cases we have recognized that Congress may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large. See, e. g., Snepp v. United States, 444 U. S. 507 (1980). When a court is required to determine the validity of such a restraint, it must “arrive at a balance between the interests of the [employee],
In such cases, which usually have involved disciplinary actions taken in response to a government employee’s speech, we have applied Pickering’s balancing test only when the employee spoke “as a citizen upon matters of public concern” rather than “as an employee upon matters only of personal interest,” Connick v. Myers, 461 U. S. 138, 147 (1983) (emphasis added). Thus, private speech that involves nothing more than a complaint about a change in the employee’s own duties may give rise to discipline without imposing any special burden of justification on the government employer. Id., at 148-149. If, however, the speech does involve a matter of public concern, the government bears the burden of justifying its adverse employment action. Rankin v. McPherson, 483 U. S. 378, 388 (1987);
The sweep of § 501(b) makes the Government’s burden heavy. Unlike Pickering and its progeny, this case does not
Although § 501(b) neither prohibits any speech nor discriminates among speakers based on the content or viewpoint of their messages, its prohibition on compensation unquestionably imposes a significant burden on expressive activity. See Simon & Schuster, Inc. v. Members of N. Y.
The ban imposes a far more significant burden on respondents than on the relatively small group of lawmakers whose past receipt of honoraria motivated its enactment. The absorbing and time-consuming responsibilities of legislators and policymaking executives leave them little opportunity for research or creative expression on subjects unrelated to their official responsibilities. Such officials often receive invitations to appear and talk about subjects related to their work because of their official identities. In contrast, invitations to rank-and-file employees usually depend only on the market value of their messages. The honoraria ban is unlikely to reduce significantly the number of appearances by high-ranking officials as long as travel expense reimbursement for the speaker and one relative is available as an alternative form of remuneration. See supra, at 460. In
The large-scale disincentive to Government employees’ expression also imposes a significant burden on the public’s right to read and hear what the employees would otherwise have written and said. See Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 756-757 (1976). We have no way to measure the true cost of that burden, but we cannot ignore the risk that it might deprive us of the work of a future Melville or Hawthorne.
IV
Because the vast majority of the speech at issue in this case does not involve the subject matter of Government employment and takes place outside the workplace, the Government is unable to justify § 501(b) on the grounds of immediate workplace disruption asserted in Pickering and the cases that followed it. Cf., e. g., Waters, 511 U. S., at 664. Instead, the Government submits that the ban comports with the First Amendment because the prohibited honoraria were “reasonably deemed by Congress to interfere with the efficiency of the public service.” Public Workers v. Mitchell, 330 U. S. 75, 101 (1947).
In Mitchell we upheld the prohibition of the Hatch Act, 5 U. S. C. § 7324(a)(2), on partisan political activity by all classified federal employees, including, for example, a skilled me
“to further serve the goal that employment and advancement in the Government service not depend on political performance, and at the same time to make sure that Government employees would be free from pressure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs.” Id., at 566.
Thus, the Hatch Act aimed to protect employees’ rights, notably their right to free expression, rather than to restrict those rights.
As both the District Court and the Court of Appeals noted, the Government has based its defense of the ban on abuses of honoraria by Members of Congress. 990 F. 2d, at
Although operational efficiency is undoubtedly a vital governmental interest, e. g., Rankin, 483 U. S., at 384, several features of the honoraria ban’s text cast serious doubt on the Government’s submission that Congress perceived honoraria as so threatening to the efficiency of the entire federal service as to render the ban a reasonable response to the threat. Cf. Waters, 511 U. S., at 677-678. The first is the rather strange parenthetical reference to “a series of appearances, speeches, or articles” that the 1991 amendment inserted in the definition of the term “honorarium.” The amended definition excludes such a series from the prohibited category unless “the subject matter is directly related to the individual’s official duties or the payment is made because of the individual’s status with the Government.” See supra, at 460. In other words, accepting pay for a series of articles is prohibited if, and only if, a nexus exists between the author’s employment and either the subject matter of the expression or the iden
Congress’ decision to provide a total exemption for all unrelated series of speeches undermines application of the ban to individual speeches and articles with no nexus to Government employment. Absent such a nexus, no corrupt bargain or even appearance of impropriety appears likely. The Government’s only argument against a general nexus limitation is that a wholesale prophylactic rule is easier to enforce than one that requires individual nexus determinations. See Brief for United States 21-23. The nexus limitation for series, however, unambiguously reflects a congressional judgment that agency ethics officials and the OGE can enforce the statute when it includes a nexus test. A blanket burden on the speech of nearly 1.7 million federal employees requires a much stronger justification than the Government’s dubious claim of administrative convenience.
The definition’s limitation of “honoraria” to expressive activities also undermines the Government’s submission that the breadth of §501 is reasonably necessary to protect the efficiency of the public service. Both Commissions that recommended the ban stressed the importance of defining hono-raria in a way that would close “potential loopholes such as receipt of consulting, professional or similar fees; payments for serving on boards; travel; sport, or other entertainment expenses not reasonably necessary for the appearance involved; or any other benefit that is the substantial equivalent of an honorarium.” See supra, at 458. Those recommendations reflected a considered judgment that compensation for “an appearance, speech or article” poses no greater danger than compensation for other services that a Government employee might perform in his or her spare time.
The fact that § 501 singles out expressive activity for special regulation heightens the Government’s burden of justification. See Minneapolis Star, 460 U. S., at 583. As we noted last Term when reviewing the Federal Communications Commission’s must-carry rules for cable television systems, “[w]hen the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply ‘posit the existence of the disease sought to be cured.’ ... It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” Turner Broadcasting System, 512 U. S., at 664. That case dealt with a direct regulation of communication by private entities, but its logic applies as well to the special burden § 501 imposes on the expressive rights of the multitude of employees it reaches. As Justice Brandéis reminded us, a “reasonable” burden on expression requires a justification far stronger than mere speculation about serious harms. “Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. ... To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced.” Whitney v. California, 274 U. S. 357, 376 (1927) (concurring opinion).
We also attach significance to the OGE regulations that limit the coverage of the statutory terms “appearance, speech or article.” 5 CFR §2636.203 (1994). The regulations exclude a wide variety of performances and writings that would normally appear to have no nexus with an employee’s job, such as sermons, fictional writings, and athletic competitions, see supra, at 460, countermanding the Commissions’ recommendation that an even more inclusive hono-raria ban would be appropriate. See supra, at 458. The exclusions, of course, make the task of the OGE and agency ethics officials somewhat easier, but they “diminish the credibility of the Government’s rationale” that paying lower level employees for speech entirely unrelated to their work jeopardizes the efficiency of the entire federal service. City of Ladue, 512 U. S., at 52. We recognize our obligation to defer to considered congressional judgments about matters such as appearances of impropriety, but on the record of this case we must attach greater weight to the powerful and realistic presumption that the federal work force consists of dedicated and honorable civil servants. The exclusions in the OGE regulations are more consistent with that presumption than
These anomalies in the text of the statute and regulations underscore our conclusion: The speculative benefits the hono-raria ban may provide the Government are not sufficient to justify this crudely crafted burden on respondents’ freedom to engage in expressive activities. Section 501(b) violates the First Amendment.
V
After holding § 501(b) invalid because it was not as carefully tailored as it should have been, the Court of Appeals approved a remedy that is itself arguably overinclusive. The relief granted by the District Court and upheld by the Court of Appeals enjoined enforcement of the entire hono-raria ban as applied to the entire Executive Branch of the Government.
For three reasons, we agree with the Government’s first suggestion — that the relief should be limited to the parties before the Court. First, although the occasional case requires us to entertain a facial challenge in order to vindicate
It is so ordered.
103 Stat. 1760, 5 U. S. C. App. §101 et seq. (1988 ed., Supp. V). The 1989 statute is a comprehensive amendment of the Ethics in Government Act of 1978, 92 Stat. 1824. The provisions of the Act governing outside income, including honoraria, are codified at 5 U. S. C. App. § 501 et seq. (1988 ed., Supp. V).
The General Schedule, abbreviated “GS,” is the basic pay schedule for employees of the Federal Government. 5 U. S. C. § 5332 (1988 ed. and Supp. V). The Executive Branch positions to which the statute gave the salary increase are on the Executive Schedule, a separate pay scale above the General Schedule. See 103 Stat. 1768.
105 Stat. 447, 5 U. S. C. §5318 note (1988 ed., Supp. V).
The original definition read as follows: “(3) The term ‘honorarium’ means a payment of money or any thing of value for an appearance, speech or article by a Member, officer or employee, excluding any actual and necessary travel expenses incurred by such individual (and one relative) to the extent that such expenses are paid or reimbursed by any other person, and the amount otherwise determined shall be reduced by the amount of any such expenses to the extent that such expenses are not paid or reimbursed.” 103 Stat. 1761, 1762.
In 1993, employees in the certified class earned between $11,903 (GS-1, step 1) and $86,589 (GS-15, step 10). 5 U. S. C. §5332 (1988 ed., Supp. V). According to OPM, the mean grade was GS-9, which paid workers between $27,789 and $36,123. Office of Personnel Management, Demographic Profile of the Federal Workforce, App. 2, p. 79 (Sept. 1992).
The Court of Appeals acknowledged that “even some of the plaintiffs receive payments that might at least raise an eyebrow,” citing a business editor for the Voice of America who received payment for business analysis and a GS-7 “tax examining assistant” as to whom payment of any honorarium might raise some concern “[i]n view of the universality of citizens’ subjection to the Internal Revenue Service.” 990 F. 2d, at 1275-1276. Another plaintiff whose expressive activities appear to come within a nexus to Government employment is the Treasury Employees’ Union itself, which complains that the honoraria ban has hindered publication of its chapters’ newsletters. App. 58-62.
“As summarized in testimony before the Senate Committee on Governmental Affairs, the prior regulations allowed honoraria so long as the speaker or writer held a rank lower than GS-16 and all of the following questions could be answered negatively:
“(1) Is the honorarium offered for carrying out government duties or for an activity that focuses specifically on the employing agency’s responsibilities, policies and programs?
“(2) Is the honorarium offered to the government employee or family member because of the official position held by the employee?
“(3) Is the honorarium offered because of the government information that is being imparted?
“(4) Is the honorarium offered by someone who does business with or wishes to do business with the employee in his or her official capacity?
“(5) Were any government resources or time used by the employee to produce the materials for the article or speech or make the appearance? “S. Rep. No. 29, 102d Cong., 1st Sess., at 8 (1991). While some of the limits may have an amorphous quality about them (such as the one purporting to probe the motive of the honorarium’s offeror), there appears no*464 actual experience of difficulty, and one can hypothesize rules of thumb that could constrain government discretion.” 990 F. 2d, at 1276-1277.
In dissent, Judge Sentelle maintained that the statute was constitutional. He also objected to the court’s remedy. In his opinion, the majority’s severance of the statutory provisions relating to the Executive Branch was “nothing less than judicial legislation,” 990 F. 2d, at 1296 (citation and internal quotation marks omitted), and its reluctance to invalidate the honoraria ban as to Members of Congress would have been “better served by striking the statute down as applied” to the plaintiff class. Id., at 1298.
See A. Turner, Nathaniel Hawthorne: A Biography 170-187 (1980); N. Arvin, Herman Melville 259-260 (1950); G. Allen, The Solitary Singer: A Critical Biography of Walt Whitman 319-321, 408 (1985); H. Merwin, The Life of Bret Harte 33-34 (1911).
Rankin is the only case in which we directly applied the Pickering balance to speech whose content had nothing to do with the workplace. The employee in that case was fired based on a statement in the workplace about an assassination attempt on the President. Satisfied that the statement was not a threat to kill the President, which the First Amendment would not have protected, we concluded that the statement involved a matter of public concern and that the firing violated the First Amendment. 483 U. S., at 386-387, 392.
The dissent seems to regard the honoraria ban as less onerous than our applications of Pickering to the speech of individual employees because the ban “is unrelated to the message or the viewpoint expressed by the government employee.” Post, at 500. Our Pickering cases only permit the Government to take adverse action based on employee speech that has adverse effects on “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 391 U. S., at 568. That certain messages may be more likely than others to have such adverse effects does not render Pickering’s restriction on speech viewpoint based. Even a teacher’s persistent advocacy in favor of the actions of the school board, cf. ibid., or an employee’s exhortation against an attempt on the President’s life, cf. Rankin v. McPherson, 483 U. S. 378 (1987), could provide proper grounds for adverse action if the government employer could demonstrate that such expression disrupted workplace efficiency. The honoraria ban as applied to respondents burdens speech far more than our past applications of Pickering because the ban deters an enormous quantity of speech before it is uttered, based only on speculation that the speech might threaten the Government’s interests.
Two decades ago, a three-Justice plurality invoked Pickering in the course of upholding against vagueness and overbreadth challenges a provision of the Lloyd-La Follette Act, 5 U. S. C. § 7501(a) (1970 ed.), that allowed the discharge of certain federal employees “only for such cause as
As of September 30,1992, the Federal Government employed 1,680,516 workers between grades GS-1 and GS-15. Office of Personnel Management, Demographic Profile of the Federal Workforce, App. 2, p. 79 (Sept. 1992).
This proposition is self-evident even to those who do not fully accept Samuel Johnson’s cynical comment: “ ‘No man but a blockhead ever wrote, except for money.’” J. Boswell, Life of Samuel Johnson LL. D. 302 (R. Hutchins ed. 1952).
Several respondents indicated that the ban would compel them to discontinue their previously compensated expressive activities. App. 46, 50-51, 55, 66, 69, 74. In at least one case, a newspaper refused to continue publishing a respondent’s work if he could not accept pay for it. Id., at 78. Despite the OGE regulations’ provision for recovery of certain expenses related to expressive activity, see supra, at 460, several respondents also reported that the ban would prevent or complicate their recovering other necessary expenses, creating a further disincentive to speak and write. App. 45-46, 55-56, 65, 74-75, 81, 84, 88.
These authors’ familiar masterworks would survive the honoraria ban as currently administered. Besides exempting all books, the OGE regulations protect fiction and poetry from the ban’s coverage, see infra, at 476, although the statute’s language is not so clear. But great artists deal in fact as well as fiction, and some deal in both. See, e. g., Allen, The Solitary Singer, at 41-55 (discussing Walt Whitman’s speeches and nonfiction newspaper writing).
Cf. Arnett, 416 U. S., at 159 (Lloyd-La Follette Act’s purpose was “to give myriad different federal employees performing widely disparate tasks a common standard of job protection”).
The Government cites a report of the General Accounting Office (GAO) to support its assertion that the ban is necessary to prevent widespread improprieties. General Accounting Office, Report to the Chairman, Subcommittee on Federal Services, Post Office and Civil Service of the Senate Committee on Governmental Affairs, Employee Conduct Standards: Some Outside Activities Present Conflict-of-interest Issues (Feb. 1992) (hereinafter GAO Report); see Brief for United States 22-23. The GAO Report found that ethics officials at several large agencies had approved 545 outside speaking activities between 1988 and 1990. GAO Report 8. Over one-third of the total approved activities dealt with subject matter, or involved duties, similar to the employees’ Government work. Id., at 58. The GAO Report’s conclusions and recommendations dealt exclusively with the problems of outside activities “that were focused specifically on the agencies’ responsibilities and/or related directly to the employees’ duties.” Id., at 13-14. The GAO Report’s examples of instances that gave rise to serious concerns about real or apparent impropriety were two cases in which high-level employees (a chemist and a physicist) engaged in consulting activities related to the subject matter of their jobs. Id., at 10. Its 112 pages contain not one mention of any real or apparent impropriety related to a lower level employee or to any employee engaged in writing or speaking or in any conduct unrelated to his or her Government job.
Portending this reliance, the primary discussion of honoraria in the 1989 Quadrennial Commission’s Report appeared as a subtopic in the “Legislative Branch” section. Fairness for Our Public Servants: The Report of The 1989 Commission on Executive, Legislative and Judicial Salaries 24 (Dec. 1988).
The Government relies heavily on the reports of both the Quadrennial Commission and the President’s Commission in defending § 501(b). See Brief for United States 3-5, 19-20.
“[W]e have consistently given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large.” Waters v. Churchill, 511 U. S. 661, 673 (1994) (plurality opinion). However, the cases in which we have done so generally have in
The Court of Appeals did not reach the ban’s applications to employees of the Legislative and Judicial Branches because its analysis of the legislative history convinced it that, had Congress believed the ban unconstitutional as to the Executive Branch, it still would have applied the ban to the other branches. 990 F. 2d, at 1279.
The parties to whom the lower courts granted relief include a single GS-16 employee. See supra, at 461. The rationale we have set forth for our holding does not necessarily apply to him. However, the Government does not request, as part of its suggested alternative to outright reversal, that we reverse the Court of Appeals’ judgment as to that one employee. Accordingly, we leave that part of the court’s judgment intact.
The Court of Appeals said: “We cannot, as a technical matter, achieve the intended severance simply by striking the words ‘officer or employee’ from § 501(b), as that would invalidate the ban beyond the executive branch. . . . However, given the far greater congressional interest in banning honoraria for the legislative and judicial branches, we think it a proper form of severance to strike ‘officer or employee’ from § 501(b) except in so far as those terms encompass members of Congress, officers and employees of Congress, judicial officers and judicial employees.” 990 F. 2d, at 1279.
See §542 of the National Defense Authorization Act for Fiscal Year 1993,106 Stat. 2413-2414.
The dissent condemns our refusal to rewrite the statute. Post, at 501-503. It notes that, when we considered a challenge to a federal statute that banned expressive displays in the Supreme Court building and on the public sidewalks around it, we had no difficulty striking down the statute only as it applied to the public sidewalks. See United States v. Grace, 461 U. S. 171, 180-183 (1983). Drawing a line between a building and sidewalks with which we are intimately familiar, based on settled First Amendment principles, see id., at 180, is a relatively simple matter. In contrast, drawing one or more lines between categories of speech covered by an overly broad statute, when Congress has sent inconsistent signals as to where the new line or lines should be drawn, involves a far more serious invasion of the legislative domain.
Concurring in Part
concurring in the judgment in part and dissenting in part.
Although I agree that aspects of the honoraria ban run afoul of the First Amendment, I write separately for two reasons. First, I wish to emphasize my understanding of how our precedents, beginning with Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968), and culminating in its most recent application, Waters v. Churchill, 511 U. S. 661 (1994), direct the Court’s conclusion. Second, I write to express my disagreement with the Court’s remedy, which in my view paints with too broad a brush.
I
The time-tested Pickering balance, most recently applied in Waters, provides the governing framework for analysis of all manner of restrictions on speech by the government as employer. Under Pickering, the Court must balance “the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [government], as an employer, in promoting the efficiency of the public services it performs through its employees.” 391 U. S., at 568. In contrast to some of our prior decisions, this case presents no threshold question whether the speech is of public, or merely private, concern. Respondents challenge the ban as it applies to off-hour speech bearing no nexus to Government employment — speech that by definition does not relate to “internal office affairs” or the employee’s status as an employee. Cf. Connick v. Myers, 461 U. S. 138, 149 (1983).
Given the breadth and intrusiveness of the honoraria ban in this case, however, I agree with the Court that significant weight must be placed on the employees’ side of the scale in the Pickering balance. We recognized in Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 115 (1991), that the imposition of financial burdens may have a direct effect on incentives to speak. See also Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575, 585 (1983) (observing that the threat of burdensome taxes “can operate as effectively as a censor to check critical comment”). Although the honoraria ban certainly does not curtail all of the non-work-related speech
The Government advances two categories of interests in support of the honoraria ban. First, the Government submits its interests in promoting the efficiency of public service and in avoiding the appearance of impropriety created by abuse of the practice of receiving honoraria. We have credited these objectives as both salutary and significant on several occasions. See, e. g., Federal Election Comm’n v. National Right to Work Comm., 459 U. S. 197, 210 (1982); First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 788, n. 26 (1978); Buckley v. Valeo, 424 U. S. 1, 26-29 (1976). Although they lend support to the Government’s efforts to put a stop to honoraria paid for work-related speech, these interests have less force in justifying a ban that prohibits honoraria paid for speech on matters wholly unrelated to the workplace. Perhaps recognizing this, the Government maintains that it has an additional interest in resisting evasion of its rule and sparing administrative resources. According to the Government, apparently innocuous payments may be made for illicit purposes, and the difficulty inherent in distinguishing the innocuous from the illicit mandates a broad prophylactic ban.
Balancing is difficult to undertake unless one side of the scale is relatively insubstantial. The Government argues that the Court should defer broadly to its determination that the benefits of the ban outweigh its costs. The Government relies on Waters, in which a plurality of the Court observed that “we have consistently given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large.” 511 U. S., at 673. But this principle has its limits, as the Waters plu
The Court makes a persuasive case that the Government has made no such showing and that the Government’s asserted interests are insufficiently weighty to justify a ban that curbs so much employee speech. See ante, at 470-477. In promulgating the ban, Congress relied on the reports of two blue-ribbon panels that suggested the prudence of a wide-ranging prohibition. Neither report noted any problems, anecdotal or otherwise, stemming from the receipt of honoraria by rank-and-file Executive Branch employees. Neither report, therefore, tends to substantiate the Government’s administrative efficiency argument, which presumes that abuses may be so widespread as to justify a prophylactic rule. Congress assuredly was inspired by a worthy interest, but it made no effort to establish a connection between its interest and the large-scale inhibition of non-work-related speech by the respondent class. Our cases do not support the notion that the bare assertion of a laudable purpose justifies wide-ranging intrusions on First Amendment liberties. In Civil Service Common v. Letter Carriers, 413 U. S. 548 (1973), perhaps the closest analogue to this case, we upheld provisions of the Hatch Act, 5 U. S. C. § 7324(a)(2), against a First Amendment challenge only after canvassing nearly a century of concrete experience with the evils of the political spoils system. Cf. FCC v. League of Women Voters of Cal.,
I also agree with the Court that loopholes in the current ethical regime tend to cast doubt upon the gravity of the problem of honoraria abuse, or at least doubt upon the weight of the problem as perceived by Congress and the Office of Government Ethics (OGE). Cf. City of Ladue v. Gilleo, 512 U. S. 43, 52-53 (1994). Thus, in a provision that detracts seriously from the Government’s administrative convenience rationale, the statute permits the author of a series of three speeches or publications (but not of a single speech or publication) to receive an honorarium if the series has no nexus to Government employment. See 5 U. S. C. App. § 505(3) (1988 ed., Supp. V). Under OGE regulations, employees may receive honoraria for poems, but not for speeches on poetry. See 5 CFR § 2636.203(d) (1992). Employees may be compensated for writing chapters in books, but not for writing the same piece if published as an article. Ibid. Congress is not required to address every aspect of a problem whenever it decides to act. But the patchwork nature of this regime might reasonably lead one to question the strength of the Government’s asserted interests in a broad, prophylactic ban.
The Government, when it acts as employer, possesses substantial leeway; in appropriate circumstances, it may restrain speech that the Constitution would otherwise protect. The Government’s prerogatives in this area stem from its public-serving mission as employer. As the plurality observed last year in Waters, “[w]hen 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 some power to restrain her.” 511 U. S., at 675. In this case, however, the Government has exceeded the limits
II
The class before us is defined by pay scale, not by its members’ propensity to write articles without nexus to Government employment. As to any member of the class, the hono-raria ban may have unconstitutional applications. But the ban may be susceptible of constitutional application to every member of the class, as well. We do not decide the question — a far harder case for respondents, in my view— whether it is constitutional to apply the honoraria ban to speech by this class that bears a relationship to Government employment. I believe that the Court overlooks this nuance when it enjoins all enforcement of § 501 against the class, any one of whose members may, in the future, receive honoraria for work-related activities. I would give respondents relief tailored to what they request: invalidation of the statute insofar as it applies to honoraria they receive for speech without nexus to Government employment. See Brief for Respondents 45-46 (noting that respondents’ central aim “could also be achieved by a remedy similar to the one urged by the government — by holding the ban invalid as applied to respondents’ writing and speaking activities [that] have no nexus to their federal employment”).
I agree with the Court’s assertion that the remedy in this case is properly limited to the parties before us. We have long characterized overbreadth analysis as “strong medicine,” to be “employed by the Court sparingly and only as a
Like the dissent, however, I believe that the Court imposes an unduly broad remedy when it enjoins enforcement of the entire provision as to respondent class. There is a commonsense appeal to the Government’s argument that, having deemed a particular application of a statute unconstitutional, a court should not then throw up its hands and despair of delineating the area of unconstitutionality. See Brief for United States 38; Reply Brief for United States 15. On its face, the statute contains an exception for a “series” of speeches, appearances, and articles unless “the subject matter is directly related to the individual’s official duties or the payment is made because of the individual’s status with the Government.” 5 U. S. C. App. §505(3) (1988 ed., Supp. V). I see no reason why the nexus principle underlying this general provision cannot serve as the appropriate remedial line.
The Court assumes that it would venture into judicial legislation were it to invalidate the provision as it applies to
In Brockett, the Court declared: “[W]here the parties challenging the statute are those who desire to engage in protected speech that the overbroad statute purports to punish, or who seek to publish both protected and unprotected mate-ria^,] . . . [t]he statute may forthwith be declared invalid to the extent that it reaches too far, but otherwise left intact.” Id., at 504. Of course, we also noted that “[pjartial invalidation would be improper if it were contrary to legislative intent in the sense that the legislature had passed an inseverable Act or would not have passed it had it known the
As the Court of Appeals noted below, “[s]ection 501(b) does not contain a severability clause, and the legislative history yields no direct evidence of intent concerning severability.” 990 F. 2d 1271, 1278 (CADC 1993). Under Alaska Airlines, this fact is by no means dispositive; the operative question instead is whether Congress would have promulgated § 501(b) had it known that it could not lawfully proscribe hon-oraria of employees below GS-16 for activities unrelated to Government employment. See 480 U. S., at 684; Stern, Separability and Separability Clauses in the Supreme Court, 51 Harv. L. Rev. 76, 82-83 (1937) (in dealing with the question of severable applications, the Court asks “whether the legislative body would intend the law to be given effect to whatever extent was constitutionally possible”). I think this question can be answered in the affirmative here. In severing this particular application, we leave the provision intact as to high-level Executive Branch employees and to the Legislative and Judicial Branches. Common sense suggests, and
In sum, I agree with the Court that §501 is unconstitutional insofar as it bars the respondent class of Executive Branch employees from receiving honoraria for non-work-related speeches, appearances, and articles. In contrast to the Court, I would hold § 501 invalid only to that extent.
dissenting.
I believe that the Court’s opinion is seriously flawed in two respects. First, its application of the First Amendment understates the weight that should be accorded to the governmental justifications for the honoraria ban and overstates the amount of speech that actually will be deterred. Second, its discussion of the impact of the statute that it strikes down is carefully limited to only a handful of the most appealing individual situations, but when it deals with the remedy it suddenly shifts gears and strikes down the statute as applied to the entire class of Executive Branch employees below grade GS-16. I therefore dissent.
I
In 1991, in the aftermath of recommendations by two distinguished commissions, Congress adopted its present ban
“a payment of money or any thing of value for an appearance, speech or article (including a series of appearances, speeches, or articles if the subject matter is directly related to the individual’s official duties or the payment is made because of the individual’s status with the Government) by a Member, officer or employee, excluding, any actual and necessary travel expenses incurred by such individual (and one relative) to the extent that such expenses are paid or reimbursed by any other person, and the amount otherwise determined shall be reduced by the amount of any such expenses to the extent that such expenses are not paid or reimbursed.” 5 U. S. C. App. §505(3) (1988 ed., Supp. V).
The ban neither prohibits anyone from speaking or writing, nor does it penalize anyone who speaks or writes; the only stricture effected by the statute is a denial of compensation.
In Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105 (1991), we evaluated the constitutionality of New York’s “Son of Sam” law, which regulated an accused or convicted criminal’s receipt of income generated by works that described his crime. Id., at 108. We concluded that the law implicated First Amendment concerns because it “impose[d] a financial disincentive only on speech of a particular content.” Id., at 116. Because the “Son of Sam” law was content based, we required the State to demonstrate that the regulation was necessary to serve a compelling state interest and was narrowly drawn to achieve that end. Id., at 118. We determined that the State had failed to meet its burden because the statute was overbroad. Id., at 123.
Unlike the law at issue in Simon & Schuster, the honoraria ban is neither content nor viewpoint based. Ante, at 468; cf. Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989);
A public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment. See Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968); Connick v. Myers, 461 U. S. 138, 140 (1983). We have emphasized, however, that “the State’s interests as an employer in regulating the speech of its employees ‘differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.’” Ibid. (quoting Pickering, supra, at 568). The proper resolution of these competing interests requires “ ‘a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’ ” 461 U. S., at 140 (quoting Pickering, supra, at 568). Just last Term, a plurality of the Court explained:
“The key to First Amendment analysis of government employment decisions, then, is this: The government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer. The government cannot restrict the speech of the public at large just in the name of efficiency. But where the government is employing someone for the very purpose of effectively achieving its goals, such restrictions may well be appropriate.” Waters v. Churchill, 511 U. S. 661, 675 (1994).
These principles are reflected in our cases involving governmental restrictions on employees’ rights to engage in partisan political activity.
More than 25 years later, we again addressed the constitutionality of §9(a) of the Hatch Act. In Civil Service Comm’n v. Letter Carriers, 413 U. S. 548 (1973), we “unhesitatingly reaffirmed] the Mitchell holding,” id., at 556, because “neither the First Amendment nor any other provision of the Constitution invalidated] a law barring this kind of partisan political conduct by federal employees,” ibid. We applied the balancing approach set forth in Pickering to the Hatch Act’s sweeping limitation on partisan political activity, and determined that the balance struck by Congress was “sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act.” 413 U. S., at 564. We concluded that “[p]erhaps Congress at some time w[ould] come to a different view of the realities of political life and Government service,” but we were in no position to dispute Congress’ current view of the matter. Id., at 567.
Although protection of employees from pressure to perform political chores certainly was a concern of the Hatch Act, see ante, at 471, it was by no means the only, or even the most important, concern.
“to serve this great end of Government — the impartial execution of the laws — it is essential that federal employees ... not take formal positions in political parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce the*494 hazards to fair and effective government.” 413 U. S., at 565.
The Court emphasized that “it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.” Ibid. Thus, the Hatch Act served as a safeguard to both the actual and perceived impartiality and effectiveness of the Federal Government. See Mitchell, supra, at 95-96; Letter Carriers, supra, at 564-567.
Applying these standards to the honoraria ban, I cannot say that the balance that Congress has struck between its interests and the interests of its employees to receive compensation for their First Amendment expression is unreasonable. Cf. Letter Carriers, supra, at 564; Pickering, 391 U. S., at 568.
The Court largely ignores the Government’s foremost interest — prevention of impropriety and the appearance of impropriety — by focusing solely on the burdens of the statute as applied to several carefully selected Executive Branch employees whose situations present the application of the statute where the Government’s interests are at their lowest ebb: a mail handler employed by the Postal Service who lectured on the Quaker religion; an aerospace engineer who lectured on black history; a microbiologist who reviewed dance performances; and a tax examiner who wrote articles about the environment. Ante, at 461-462. Undoubtedly these are members of the class, but they by no means represent the breadth of the class which includes all “‘employee[s]’ . . . below grade GS-16, who—but for 5 U. S. C. app. 501(b)— would receive ‘honoraria’, as defined in 5 U. S. C. app. 505(3).” App. 124-125. Nothing in the class certification limits the receipt of honoraria to the activities engaged in by the several employees discussed by the Court. See, e. g.,
The class definition speaks of anyone who would receive an honorarium but for the statute. App. 124-125. An unknown number of these individuals would receive honoraria where there is a nexus between their speech and their Government employment. There is little doubt that Congress reasonably could conclude that its interests in preventing impropriety and the appearance of impropriety in the federal work force outweigh the employees’ interests in receiving compensation for expression that has a nexus to their Government employment. Cf. Federal Election Comm’n v. National Right to Work Comm., 459 U. S. 197, 210 (1982) (“The governmental interest in preventing both actual corruption and the appearance of corruption of elected representatives has long been recognized”).
The Court relies on cases involving restrictions on the speech of private actors to argue that the Government is required to produce “evidence of misconduct related to hono-raria in the vast rank and file of federal employees below grade GS-16.” Ante, at 472; ante, at 475-476, and n. 21.
“We recognize that speeches by federal officials can help inform the public or particular groups and may encourage interchange between the public and private sectors. Nevertheless, we can see no justification for perpetuating the current system of honoraria. Hono-raria paid to officials can be a camouflage for efforts by individuals or entities to gain the officials’ favor. The companies that pay honoraria and related travel expenses frequently deem these payments to be normal business expenses and likely believe that these payments enhance their access to public officials who receive them....
“Although we are aware of no special problems associated with receipt of honoraria within the judiciary, the Commission — in the interest of alleviating abuses in the legislative branch and in applying equitable limitations across the government — joins the Quadrennial Commission in recommending the enactment of legislation to ban the receipt of honoraria by all officials and employees in all three branches of government.” Id., at 35-36 (emphasis added).
The Wilkey Commission “recognize[d] that banning hono-raria would have a substantial financial cost to many officials,” id., at 36, but determined that “the current ailment is
The Court concedes that in light of the abuses of honoraria by its Members, Congress could reasonably assume that “payments of honoraria to judges or high-ranking officials in the Executive Branch might generate a similar appearance of improper influence,” ante, at 473, but it concludes that Congress could not extend this presumption to federal em
Furthermore, we rejected the same distinction in Public Workers v. Mitchell:
“There is a suggestion that administrative workers may be barred, constitutionally, from political management and political campaigns while the industrial workers may not be barred, constitutionally, without an act ‘narrowly and selectively drawn to define and punish the specific conduct.’ . . . Congress has determined that the presence of government employees, whether industrial or administrative, in the ranks of political party workers is bad. Whatever differences there may be between administrative employees of the government and industrial workers in its employ are differences in detail so far as the constitutional power under review is concerned. Whether there are such differences and what weight to attach to them, are all matters of detail for Congress.” 330 U. S., at 102.
Congress was not obliged to draw an infinitely filigreed statute to deal with every subtle distinction between various groups of employees. See Letter Carriers, 413 U. S., at 556; Mitchell, supra, at 99.
The Court dismisses the Hatch Act experience as irrelevant, because it aimed to protect employees’ rights, notably their right to free expression, rather than to restrict those rights. Ante, at 471. This is, indeed, a strange characterization of § 9(a) of the Hatch Act. It prohibited officers
The Government’s related concern regarding the difficulties that would attach in administering a case-by-case analysis of the propriety of particular honoraria also supports the honoraria ban’s validity. As we emphasized in Waters, “[t]he government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer.” 511 U. S., at 675. Congress reasonably determined that the prior ethics regime, which required these case-by-case determinations, was inadequate. See App. 257 (“[T]he current state of affairs as to honoraria [is] unacceptable in the extreme”). As a subsequent 1992 GAO Report confirmed, individual ethics officers and various agencies gave differing interpretations to the nexus requirement, and some “approved activities that were questionable as to the appropriateness of accepting compensation.” GAO Report, at 9.
The Court observes that because a nexus limitation is retained for a series of speeches, it cannot be that difficult to enforce. Ante, at 474. The exception that the honoraria ban
Unlike our prototypical application of Pickering which normally involves a response to the content of employee speech, the honoraria ban prohibits no speech and is unrelated to the message or the viewpoint expressed by the Government employee.
There is a special irony to the Court’s decision. In order to combat corruption and to regain the public’s trust, the Court essentially requires Congress to resurrect a bureaucracy that it previously felt compelled to replace and to equip it with resources sufficient to conduct case-by-case determinations regarding the actual and apparent propriety of hono-raria by all Executive Branch employees below grade GS-16. I believe that a proper application of the Pickering test to this content-neutral restriction on the receipt of compensation compels the conclusion that the honoraria ban is consistent with the First Amendment. See Civil Service Comm’n v. Letter Carriers, 413 U. S. 548 (1973).
II
One would expect, at the conclusion of its discussion in Parts I-IV, for the Court to hold the statute inapplicable on First Amendment grounds to persons such as the postal worker who lectures on the Quaker religion, and others of similar ilk. But the Court in Part V, in what may fairly be described as an O. Henry ending, holds the statute inapplicable to the entire class before the Court: all Executive Branch employees below grade GS-16 who would receive honoraria but for the statute. Under the Court’s “as applied” remedy, § 501(b) would not apply regardless of whether there was a nexus between the compensation and the individual’s employment. Even if I agreed that application of the honoraria ban to expressive activity unrelated to an employee’s Gov
In United States v. Grace, 461 U. S. 171 (1983), we analyzed the constitutionality of 40 U. S. C. § 13k (1982 ed.), as applied to the public sidewalks surrounding the Supreme Court. Section 13k prohibited, “among other things, the ‘display [of] any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement’ in the United States Supreme Court building and on its grounds.” 461 U. S., at 172-173 (quoting § 13k). We concluded that there was insufficient justification for § 13k’s prohibition against carrying signs, banners, or devices on the public sidewalks surrounding the building. Id., at 183. As a remedy, we held that § 13k was “unconstitutional as applied to those sidewalks.” Ibid.; see also Edenfield v. Fane, 507 U. S. 761, 763 (1993) (striking down a ban on solicitation by certified public accountants as applied to the “business context”).
Although the Court limits its analysis to only those applications of the honoraria ban where there is no nexus between the honoraria and Government employment, the Court prohibits application of the honoraria ban to all Executive Branch employees below grade GS-16 even where there is a nexus between the honoraria and the employees’ Government employment. Ante, at 479-480.
Consistent with our approach in Grace, supra, if I were to conclude that § 501(b) violated the First Amendment, I would affirm the Court of Appeals only insofar as its judgment affirmed the injunction against the enforcement of § 501(b) as applied to Executive Branch employees below grade GS-16 who seek honoraria that are unrelated to their Government employment.
In Ex parte Curtis, 106 U. S. 371 (1882), we upheld a statute that prohibited certain Government employees from giving or receiving money for political purposes to or from other Government employees. Ibid. The evident purpose of the statute was to “promote efficiency and integrity in the discharge of official duties, and to maintain proper discipline in the public service.” Id., at 373. “The decisive principle was the power of Congress, within reasonable limits, to regulate, so far as it might deem necessary, the political conduct of its employees.” Public Workers v. Mitchell, 330 U. S. 75, 96 (1947) (analyzing Ex parte Curtis, supra).
Prior to the Hatch Act, Congress had prohibited Civil Service employees from “ ‘us[ing] [their] official authority or influence to coerce the political action of any person or body.’ ” Mitchell, supra, at 79-80, n. 4 (quoting Civil Service Act, ch. 27, §2, 22 Stat. 404).
Ironically, the Court engages in unsupported factfinding to justify its conclusion. Thus, its First Amendment analysis is replete with observations such as “[w]ith few exceptions, the content of respondents’ messages has nothing to do with their jobs and does not even arguably have any adverse impact on the efficiency of the offices in which they work,” ante, at 465; and “[bjecause the vast majority of the speech at issue in this case does not involve the subject matter of Government employment and takes place outside the workplace, the Government is unable to justify § 501(b) on the grounds of immediate workplace disruption.” Ante, at 470.
“The Commission also considered whether it was appropriate to impose a flat ban on outside earned income by all federal employees, or in the alternative, by the highest paid federal employees. In view of the diverse circumstances of federal employees, we felt that an across-the-board ban on outside earned income was unnecessary and too harsh.” Wilkey Commission 38.
The Court discusses a report of the General Accounting Office (GAO) to refute the argument that there is some evidence of misconduct related to honoraria in the rank and file of federal employees below grade GS-16. Ante, at 472, n. 18 (citing General Accounting Office, Report to the Chairman, Subcommittee on Federal Services, Post Office and Civil Service of the Senate Committee on Governmental Affairs, Employee Conduct Standards: Some Outside Activities Present Conflict-of-interest Issues (Feb. 1992) (hereinafter GAO Report)). The GAO audited 11 agencies’ controls over outside activities by employees. Id., at 2. The GAO Report reflects that under the prior regime, some agencies exhibited “overly permissive approval policies,” ibid., and “five agencies approved some outside activities, such as speaking and consulting, that appeared to violate the standard of conduct prohibiting the use of public office for private gain,” ibid. Nine of the eleven agencies reviewed had “approved outside activities in situations that involved potential violations of standard-of-conduct regulations or conflict-of-interest statutes.” Id., at 58. Nevertheless, the Court maintains that there is no evidence of even the appearance of impropriety by employees below grade GS-16. Cf. ante, at 472, n. 18.
The Court’s fanciful example of an employer terminating an employee because of the disruptive effect of the employee’s expression even where the employer agrees with the expression, ante, at 467, n. 11, does not detract from the fact that viewpoint and content neutrality are important factors in evaluating the reasonableness of the public employer’s action. See, e. g., Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 564 (1973) (“The restrictions so far imposed on federal employees are not aimed at particular parties, groups, or points of view.... Nor do they seek to control political opinions or beliefs, or to interfere with or influence anyone’s vote at the polls”).
Lost in the shuffle of the Court’s remedy is Peter Crane, a GS-16 lawyer from the Nuclear Regulatory Commission, and a respondent before the Court. Ante, at 461. Although the rationale behind the Court’s holding does not necessarily apply to Crane, see ante, at 478, n. 23, the Court’s holding apparently does.
Because the Court has rewritten the honoraria ban so that it no longer applies to Executive Branch employees below grade GS-16, I certainly could not condemn the Court for its refusal to rewrite the statute. Cf. ante, at 479, n. 26. I simply challenge the Court’s failure to tailor its remedy to match its selective analysis.
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