513 U.S. 454 (1995), 93-1170, United States v. Treasury Employees

Docket Nº:No. 93-1170
Citation:513 U.S. 454, 115 S.Ct. 1003, 130 L.Ed.2d 964, 63 U.S.L.W. 4133
Case Date:February 22, 1995
Court:United States Supreme Court

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513 U.S. 454 (1995)

115 S.Ct. 1003, 130 L.Ed.2d 964, 63 U.S.L.W. 4133




No. 93-1170

United States Supreme Court

February 22, 1995

Argued November 8, 1994



After § 501(b) of the Ethics in Government Act of 1978 was amended to prohibit a Member of Congress, federal officer, or other Government employee from accepting an honorarium for making an appearance or speech or writing an article, respondents—including individual members of, and a union representing, a class composed of all Executive Branch employees below grade GS-16 who, but for § 501(b), would receive honoraria—filed a suit challenging the statute as an unconstitutional abridgment of their freedom of speech. The speeches and articles for which respondents had received honoraria in the past concerned matters such as religion, history, dance, and the environment; with few exceptions, neither their subjects nor the persons or groups paying for them had any connection with respondents' official duties. In granting respondents' motion for summary judgment, the District Court held § 501(b) unconstitutional insofar as it applies to Executive Branch employees and enjoined the Government from enforcing it against any such employee. The Court of Appeals affirmed, emphasizing, inter alia, that the Government's failure as to many respondents to identify some sort of nexus between the employee's job and either the expression's subject matter or the payor's character undercut its proffered concern about actual or apparent improprieties in the receipt of honoraria.


Section 501(b) violates the First Amendment. Pp. 464-480.

(a) The honoraria ban imposes the kind of burden that abridges speech under the First Amendment. Where, as here, Government employees seek to exercise their right as citizens to comment on matters of public interest, and are not attempting simply to speak as employees upon personal matters, the Government must be able to satisfy a balancing test of the type set forth in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568, in order to maintain a statutory restriction on the employees' speech. See Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 564. However, because § 501(b) constitutes a wholesale deterrent to a broad category of expression by a massive number of potential speakers, the Government's burden here is even greater than it was in Pickering and its progeny, which

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usually involved individual disciplinary actions taken in response to particular government employees' actual speech. Specifically, the Government must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression's "necessary impact on the actual operation" of the Government, Pickering, 391 U.S., at 571. 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 respondents' expressive activity by inducing them to curtail their expression if they wish to continue their employment. Moreover, the ban imposes a far more significant burden on them than on the relatively small group of lawmakers whose past receipt of honoraria assertedly motivated its enactment. The large-scale disincentive to expression also imposes a significant burden on the public's right to read and hear what Government employees would otherwise have written and said. Pp. 464-470.

(b) The Government has failed to show how the interests it asserts to justify § 501(b) are served by applying the honoraria ban to respondents. Public Workers v. Mitchell, 330 U.S. 75, distinguished. Although the asserted concern that federal officers not misuse or appear to misuse power by accepting compensation for their unofficial and nonpolitical writing and speaking activities is undeniably powerful, the Government cites no evidence of misconduct related to honoraria by the vast rank and file of federal employees below grade GS-16. The limited evidence of actual or apparent impropriety by Members of Congress and high level executives cannot justify extension of the honoraria ban to that rank and file, an immense class of workers with negligible power to confer favors on those who might pay to hear them speak or to read their articles. Moreover, while operational efficiency is undoubtedly a vital governmental interest, several features of the text of the ban and of the pertinent regulations 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. First, the total exemption of payments for "any series of appearances, speeches, or articles" unrelated to the employee's official duties or status from § 505(3)'s definition of "honorarium" undermines application of the ban to individual speeches and articles with no nexus to Government employment. Second, the definition's limitation of "honoraria" to payments for expressive activities, as opposed to other services that a Government employee might perform in his or her spare time, requires a justification far stronger than the mere speculation

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about serious harms advanced by the Government. Finally, the regulations' exclusions from the coverage of the statutory terms "appearance, speech or article" of a wide variety of performances and writings that would normally appear to have no nexus with an employee's job are more consistent with the presumption that the federal work force consists of dedicated and honorable civil servants than with the honoraria ban's dubious application not merely to policymakers, whose loss of honoraria was offset by a salary increase, but to all Executive Branch employees below grade GS-16. Pp. 470-477.

(c) Insofar as the judgment below grants relief to senior federal executives who are not parties to this case, it is reversed as overinclusive. However, in light of this Court's obligation to avoid judicial legislation and its inability to correctly identify the exact terms of any nexus requirement that Congress would have adopted in a more limited honoraria ban, the Court refuses to modify the remedy further by crafting such a nexus requirement. Pp. 477-480.

990 F.2d 1271, affirmed in part, reversed in part, and remanded.

Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. O'Connor, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 480. Rehnquist, C. J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined, post, p. 489.

Deputy Solicitor General Bender argued the cause for the United States. With him on the briefs were Solicitor General Days, Assistant Attorney General Hunger, Michael R. Dreeben, John C. Hoyle, and Alfred Mollin.

Gregory O'Duden argued the cause for respondents. With him on the brief were Elaine Kaplan, Barbara A. Atkin, Mark D. Roth, Anne Wagner, John Vanderstar, Steven R. Shapiro, and Arthur B. Spitzer.[*]

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Justice Stevens 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.


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,[1] which contains the provision challenged in this case.

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

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'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...

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