483 U.S. 378 (1987), 85-2068, Rankin v. McPherson

Docket Nº:No. 85-2068
Citation:483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315, 55 U.S.L.W. 5019
Party Name:Rankin v. McPherson
Case Date:June 24, 1987
Court:United States Supreme Court

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483 U.S. 378 (1987)

107 S.Ct. 2891, 97 L.Ed.2d 315, 55 U.S.L.W. 5019




No. 85-2068

United States Supreme Court

June 24, 1987

Argued March 23, 1987




Respondent, a data-entry employee in a county Constable's office, was discharged for remarking to a coworker, after hearing of an attempt on the President's life, "if they go for him again, I hope they get him." Respondent was not a commissioned peace officer, did not wear a uniform, was not authorized to make arrests or permitted to carry a gun, and was not brought by virtue of her job into contact with the public. Her duties were purely clerical, were limited solely to the civil process function of the Constable's office, and did not involve her in the office's minimal law enforcement activity. Her statement was made during a private conversation in a room not readily accessible to the public. The Constable fired petitioner because of the statement. She then brought suit in the Federal District Court under 42 U.S.C. § 1983, alleging that her discharge violated her First Amendment right to free speech under color of state law. The court upheld the discharge, but the Court of Appeals vacated and remanded, whereupon the District Court again ruled against respondent. However, the Court of Appeals reversed and remanded for determination of an appropriate [107 S.Ct. 2894] remedy, holding that respondent's remark had addressed a matter of public concern, and that the governmental interest in maintaining efficiency and discipline in the workplace did not outweigh society's First Amendment interest in protecting respondent's speech.

Held: Respondent's discharge violated her First Amendment right to freedom of expression. Pp. 383-392.

(a) The content, form, and context of respondent's statement, as revealed by the record, support the threshold conclusion that the statement constitutes speech on a matter of public concern. The statement was made in the course of a conversation addressing the policies of the President's administration, and came on the heels of a news bulletin regarding a matter of heightened public attention: an attempt on the President's life. Although a statement amounting to a threat to kill the President would not be protected by the First Amendment, the lower courts correctly concluded that respondent's remark could not properly be criminalized. Moreover, the inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern. Pp. 384-387.

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(b) Petitioners have not met their burden of demonstrating a state interest justifying respondent's discharge that outweighs her First Amendment rights, given the functions of the Constable's office, respondent's position therein, and the nature of her statement. Although that statement was made at the workplace, there is no evidence that it interfered with the efficient functioning of the office. Nor was there any danger that respondent had discredited the office by making the statement in public. Her discharge was not based on any assessment that her remark demonstrated a character trait that made her unfit to perform her work, which involved no confidential or policymaking role. Furthermore, there was no danger that the statement would have a detrimental impact on her working relationship with the Constable, since their employment-related interaction was apparently negligible. Pp. 388-392.

786 F.2d 1233, affirmed.

MARSHALL, J., delivered the opinion of the Court, in which BRENNAN, BLACKMUN, POWELL, and STEVENS, JJ., joined. POWELL, J., filed a concurring opinion, post p. 392. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J., and WHITE and O'CONNOR, JJ., joined, post p. 394.

MARSHALL, J., lead opinion

JUSTICE MARSHALL delivered the opinion of the Court.

The issue in this case is whether a clerical employee in a county Constable's office was properly discharged for rmarking,

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after hearing of an attempt on the life of the President, "If they go for him again, I hope they get him."


On January 12, 1981, respondent Ardith McPherson was appointed a deputy in the office of the Constable of Harris County, Texas. The Constable is an elected official who functions as a law enforcement officer.1 At the time of her appointment, [107 S.Ct. 2895] McPherson, a black woman, was 19 years old and had attended college for a year, studying secretarial science. Her appointment was conditional for a 90-day probationary period.

Although McPherson's title was "deputy constable," this was the case only because all employees of the Constable's office, regardless of job function, were deputy constables. Tr. of Oral Arg. 5. She was not a commissioned peace officer, did not wear a uniform, and was not authorized to make arrests or permitted to carry a gun.2 McPherson's duties were purely clerical. Her work station was a desk at which there was no telephone, in a room to which the public did not have ready access. Her job was to type data from court papers

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into a computer that maintained an automated record of the status of civil process in the county. Her training consisted of two days of instruction in the operation of her computer terminal.

On March 30, 1981, McPherson and some fellow employees heard on an office radio that there had been an attempt to assassinate the President of the United States. Upon hearing that report, McPherson engaged a coworker, Lawrence Jackson, who was apparently her boyfriend, in a brief conversation which, according to McPherson's uncontroverted testimony, went as follows:

Q: What did you say?

A: I said I felt that that would happen sooner or later.

Q: Okay. And what did Lawrence say?

A: Lawrence said, yeah, agreeing with me.

Q: Okay. Now, when you -- after Lawrence spoke, then what was your next comment?

A: Well, we were talking -- it's a wonder why they did that. I felt like it would be a black person that did that, because I feel like most of my kind is on welfare and CETA, and they use medicaid, and at the time, I was thinking that's what it was.

. . . But then after I said that, and then Lawrence said, yeah, he's cutting back medicaid and food stamps. And I said, yeah, welfare and CETA. I said, shoot, if they go for him again, I hope they get him.3

McPherson's last remark was overheard by another Deputy Constable, who, unbeknownst to McPherson, was in the room at the time. The remark was reported to Constable Rankin,

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who summoned McPherson. McPherson readily admitted that she had made the statement, but testified that she told Rankin, upon being asked if she made the statement, "Yes, but I didn't mean anything by it." App. 38.4 After their [107 S.Ct. 2896] discussion, Rankin fired McPherson.5

McPherson brought suit in the United States District Court for the Southern District of Texas under 42 U.S.C. § 1983, alleging that petitioner Rankin, in discharging her, had violated her constitutional rights under color of state law. She sought reinstatement, backpay, costs and fees, and other equitable relief. The District Court held a hearing, and then granted summary judgment to Constable Rankin, holding that McPherson's speech had been unprotected, and that her discharge had therefore been proper. Civ.Action No. H-81-1442 (Apr. 15, 1983).6 The Court of Appeals for the Fifth Circuit vacated and remanded for trial, 736 F.2d 175 (1984), on the ground that substantial issues of material fact regarding the context in which the statement

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had been made precluded the entry of summary judgment. Id. at 180.

On remand, the District Court held another hearing and ruled once again, this time from the bench, that the statements were not protected speech. App. 120. Again, the Court of Appeals reversed. 786 F.2d 1233 (1986). It held that McPherson's remark had addressed a matter of public concern, requiring that society's interest in McPherson's freedom of speech be weighed against her employer's interest in maintaining efficiency and discipline in the workplace. Id. at 1236. Performing that balancing, the Court of Appeals concluded that the Government's interest did not outweigh the First Amendment interest in protecting McPherson's speech. Given the nature of McPherson's job and the fact that she was not a law enforcement officer, was not brought by virtue of her job into contact with the public, and did not have access to sensitive information, the Court of Appeals deemed her "duties . . . so utterly ministerial and her potential for undermining the office's mission so trivial" as to forbid her dismissal for expression of her political opinions. Id. at 1239. "However ill-considered Ardith McPherson's opinion was," the Court of Appeals concluded, "it did not make her unfit" for the job she held in Constable Rankin's office. Ibid. The Court of Appeals remanded the case for determination of an appropriate remedy.

We granted certiorari, 479 U.S. 913 (1986), and now affirm.


It is clearly established that a State may not discharge an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech. Perry v. Sindermann, 408 U.S. 593, 597 (1972). Even though McPherson was merely a probationary employee, and even if she could have been discharged for any reason or for no reason at all, she may nonetheless be entitled to reinstatement if she was discharged for exercising her constitutional right to

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freedom of expression. See Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 284-285 (1977); Perry v. Sindermann, supra, at 597-598.

The determination whether a public employer has properly discharged an employee for engaging in speech requires

a balance between the interests of the [employee], as a citizen, in commenting upon matters of public...

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