Supreme Court of the United States
United States et al.
National Treasury Employees Union et al.
513 U.S. 454 (1995)
On Certiorari to the United States Court of Appeals for the District of Columbia
990 F. 2d 1271
Affirmed in part, reversed in part, and remanded, 513
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 GS16 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. 464480.
(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
[513 U.S. 454, 455]
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. 464470.
(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 GS16. 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
[513 U.S. 454, 456]
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 GS16. Pp. 470477.
(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. 477480.
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.
Stephen F. Black and W. Hardy Callcott filed a brief for Common Cause as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the Freedom to Read Foundation et al. by R. Bruce Rich, Paul M. Smith, Bruce J. Ennis, Jr., Julie M. Carpenter, Elliot M. Mincberg, and Lawrence S. Ottinger; for Public Citizen, Inc., by Alan B. Morrison; for the Senior Executives Association by George J. Shaw, Jr., and William L. Bransford; and for Peter Bollen by Stephen S. Ostrach.
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.
Justice Stevens delivered the opinion of the Court.
[513 U.S. 454, 457]
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, [note 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
[513 U.S. 454, 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
[513 U.S. 454, 459] certain high-level Executive Branch employees above the salary grade GS15. [note 2] See 103 Stat. 1768. Another sectionthe one at issue here amended § 501(b) of the Ethics in Government Act of 1978 to create an "Honoraria Prohibition,"
which reads: "An individual may not receive any honorarium while that individual is a Member, officer or
employee." Id., at 1760.
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, [note 3] extended both the salary increase and the prohibition against honoraria to the Senate. The 1989 Act defined "honorarium"
to encompass any compensation paid to a Government employee for "an appearance, speech or article." [note 4] The
1992 Appropriations Act amended that definition to exclude any series of appearances, speeches, or articles unrelated to
the employee's official duties or status. The definition now reads as follows:
"(3) The term 'honorarium' means a payment of money or any thing of value for an appearance, speech
[513 U.S. 454, 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).
[513 U.S. 454, 461]
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 GS16, who
but for 5 U.S.C. app. 501( b) would receive 'honoraria, ' as defined in 5 U.S.C. app. 505(3)." App. 124125. [note 5] All of
the individual respondents save one are members of the class; the exception is a grade GS16 lawyer for the Nuclear
Regulatory Commission who has published articles about Russian history.
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 [513 U.S. 454, 462] employed by the Internal Revenue Service in Ogden, Utah,
had received comparable pay for articles about the environment.
Id., at 67.
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, 1314 (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 honoraria
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
[513 U.S. 454, 463] many respondents to identify "some sort of nexus between
the employee's job and either the subject matter of the expression
or the character of the payor" undercut its proffered
concern about actual or apparent improprieties. Id.,
at 1275. [note 6] Stressing the absence of evidence of either corruption
or the appearance of corruption among lower level federal
employees receiving honoraria with no connection to
their employment, the Court of Appeals concluded that the
Government had failed to justify the ban's burden on their
speech. Id., at 1277. The court rejected the Government's
argument that administrative and enforcement difficulties
justify § 501(b)'s broad prophylactic rule. [note 7]
[513 U.S. 454, 464] Turning to the question of remedy, the Court of Appeals agreed with the District Court that § 501(b)'s application to
Executive Branch employees is severable from the remainder of the statute. The legislative history convinced the
court that Congress had adopted the honoraria ban primarily in response to the growing concern about payments to its
own Members; moreover, the statute itself disclosed that "the honorarium ban was adopted as part of a package of
which a key ingredient was a sharp increase in the salary of members of Congress, judges, and a limited class of senior
executive branch officials." Id., at 1278 (citation omitted). Accordingly, the court fashioned a remedy that, in effect,
rewrote the statute by eliminating the words "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." Id., at
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).
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-[note 8]
[513 U.S. 454, 465] partments of Justice and Interior; and Bret Harte, an employee of the mint. [note 9] Respondents have yet to make comparable
contributions to American culture, but they share with these great artists important characteristics that are relevant
to the issue we confront.
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
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],
[513 U.S. 454, 466] 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." Pickering, 391 U.S., at 568.
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 148149. 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); [note 10] see also Waters
v. Churchill, 511 U.S. 661, 674 (1994). Respondents' expressive
activities in this case fall within the protected category
of citizen comment on matters of public concern rather than
employee comment on matters related to personal status in
the workplace. The speeches and articles for which they received
compensation in the past were addressed to a public
audience, were made outside the workplace, and involved
content largely unrelated to their Government employment.
The sweep of § 501(b) makes the Government's burden
heavy. Unlike Pickering and its progeny, this case does not
[513 U.S. 454, 467] involve a post hoc analysis of one employee's speech and its impact on that employee's public responsibilities. Cf. Waters
v. Churchill, 511 U.S. 661 (1994); Rankin v. McPherson, 483 U.S. 378 (1987); Connick v. Myers, 461 U.S. 138 (1983);
Perry v. Sindermann, 408 U.S. 593 (1972). Rather, the
Government asks us to apply Pickering to Congress' wholesale deterrent to a broad category of expression by a massive
number of potential speakers. [note 11] In Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 564 (1973), we established that
the Government must be able to satisfy a balancing test of the Pickering form to maintain a statutory restriction on
employee speech. Because the discussion in that case essentially restated in balancing terms our approval of the Hatch
Act i n Public Workers v. Mitchell, 330 U.S. 75 (1947), we did not determine how the components of the Pickering balance
should be analyzed in the context of a sweeping statutory impediment to speech. [note 12]
[513 U.S. 454, 468] We normally accord a stronger presumption of validity to a congressional judgment than to an individual executive's
disciplinary action. See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 671, and n. 2 (1994) (Stevens, J., concurring
in part and concurring in judgment). The widespread impact of the honoraria ban, however, gives rise to
far more serious concerns than could any single supervisory decision. See City of Ladue v. Gilleo, 512 U.S. 43, 5455
(1994). [note 13] In addition, unlike an adverse action taken in response to actual speech, this ban chills potential speech before
it happens. Cf. Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931). For these reasons, the Government's burden
is greater with respect to this statutory restriction on expression than with respect to an isolated disciplinary action.
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 expressive
activity. See Simon & Schuster, Inc. v. Members of N.Y.
[513 U.S. 454, 469] State Crime Victims Bd., 502 U.S. 105 (1991); see also Arkansas
Writers' Project, Inc. v. Ragland, 481 U.S. 221, 227
231 (1987); Minneapolis Star & Tribune Co. v. Minnesota
Comm'r of Revenue, 460 U.S. 575 (1983). Publishers compensate
authors because compensation provides a significant
incentive toward more expression. [note 14] By denying respondents
that incentive, the honoraria ban induces them to curtail
their expression if they wish to continue working for the
Government. [note 15]
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
[513 U.S. 454, 470] contrast, the denial of compensation for lower paid, nonpolicymaking employees will inevitably diminish their expressive output.
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,
756757 (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. [note 16] The honoraria ban imposes the kind of burden that abridges
speech under the First Amendment.
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-[513 U.S. 454, 471]chanic at the mint named Poole who had no policymaking authority. We explained that "[t] here are hundreds of thousands
of United States employees with positions no more influential upon policy determination than that of Mr. Poole.
Evidently what Congress feared was the cumulative effect on employee morale of political activity by all employees who
could be induced to participate actively." 330 U.S., at 101. In Civil Service Comm'n v. Letter Carriers, 413 U.S. 548 (1973), we noted that enactment of the Hatch Act in 1939 reflected "the conviction that the rapidly expanding Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political machine." Id., at 565. An equally important concern was
"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. [note 17] Like the Hatch Act, the honoraria ban affects hundreds of thousands of federal employees. Unlike
partisan political activity, however, honoraria hardly appear to threaten employees' morale or liberty. Moreover, Congress
effectively designed the Hatch Act to combat demonstrated ill effects of Government employees' partisan political
activities. In contrast, the Government has failed to show how it serves the interests it asserts by applying the
honoraria ban to respondents.
[513 U.S. 454, 472] The Government's underlying concern is that federal officers
not misuse or appear to misuse power by accepting compensation
for their unofficial and nonpolitical writing and
speaking activities. This interest is undeniably powerful,
but the Government cites no evidence of misconduct related
to honoraria in the vast rank and file of federal employees
below grade GS16. [note 18] Instead of a concern about the "cumulative
effect" of a widespread practice that Congress deemed
to "menace the integrity and the competency of the service,"
Mitchell, 330 U.S., at 103, the Government relies here on
limited evidence of actual or apparent impropriety by legislators
and high-level executives, together with the purported
administrative costs of avoiding or detecting lower level employees'
violations of established policies.
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
[513 U.S. 454, 473] 1278; 788 F. Supp., at 13. [note 19] Congress reasonably could assume that payments of honoraria to judges or high-ranking
officials in the Executive Branch might generate a similar appearance of improper influence. Congress could not, however,
reasonably extend that assumption to all federal employees below grade GS16, 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. A federal
employee, such as a supervisor of mechanics at the mint, might impair efficiency and morale by using political criteria
to judge the performance of his or her staff. But one can envision scant harm, or appearance of harm, resulting from
the same employee's accepting pay to lecture on the Quaker religion or to write dance reviews.
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 677678. 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-[513 U.S. 454, 474]tity of the payor. For an individual article or speech, in contrast, pay is taboo even if neither the subject matter nor
the payor bears any relationship at all to the author's duties.
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 2123. 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 honoraria 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. [note 20] Congress,
[513 U.S. 454, 475] however, chose to restrict only expressive activities. One might reasonably argue that expressive activities, because
they occupy a favored position in the constitutional firmament, should be exempt from even a comprehensive ban on
outside income. Imposing a greater burden on speech than on other off-duty activities assumed to pose the same threat
to the efficiency of the federal service is, at best, anomalous.
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 Brandeis 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). [note 21]
[513 U.S. 454, 476] The Government has not persuaded us that § 501(b) is a reasonable
response to the posited harms.
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 honoraria
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
[513 U.S. 454, 477] 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 GS16 as well.
These anomalies in the text of the statute and regulations underscore our conclusion: The speculative benefits the honoraria
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.
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 honoraria ban as applied to the entire Executive Branch of the
Government. [note 22] That injunction provides relief to senior executives who are not parties to this case. It also prohibits
enforcement of the statute even when an obvious nexus exists between the employee's job and either the subject matter
of his or her expression or the interest of the person paying for it. As an alternative to its request for outright
reversal, the Government asks us to modify the judgment by upholding the statute as it applies, first, to employees not
party to this action and, second, to situations in which a nexus is present.
For three reasons, we agree with the Government's first suggestionthat 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 [513 U.S. 454, 478] a party's right not to be bound by an unconstitutional statute, see, e. g., Secretary of State of Md. v. Joseph H. Munson Co. , 467 U.S. 947, 965967, and n.13 (1984), we neither want nor need to provide relief to nonparties when a narrower remedy will fully protect the litigants. See Board of Trustees of State Univ. of N. Y. v. Fox, 492 U.S. 469, 484485 (1989). In this case, granting full relief to respondents who include all Executive Branch employees below grade GS16 does not require passing on the applicability of § 501(b) to Executive Branch employees above grade GS15, including those high-level employees who received a 25% salary increase that offsets the honoraria ban's disincentive to speak and write. Second, the Government conceivably might advance a different justification for an honoraria ban limited to more senior officials, thus presenting a different constitutional question than the one we decide today. [note 23] Our
policy of avoiding unnecessary adjudication of constitutional issues, see Ashwander v. TVA, 297 U.S. 288, 346347 (1936) (Brandeis, J., concurring), therefore counsels against determining senior officials' rights in this case. Third, as the Court of Appeals recognized, its remedy required it to tamper with the text of the statute, [note 24] a practice we strive to avoid.
[513 U.S. 454, 479] Our obligation to avoid judicial legislation also persuades
us to reject the Government's second suggestion that we
modify the remedy by crafting a nexus requirement for the
honoraria ban. We cannot be sure that our attempt to re-draft
the statute to limit its coverage to cases involving an
undesirable nexus between the speaker's official duties and
either the subject matter of the speaker's expression or the
identity of the payor would correctly identify the nexus Congress
would have adopted in a more limited honoraria ban.
We cannot know whether Congress accurately reflected its
sense of an appropriate nexus in the terse, 33-word parenthetical
statement with which it exempted series of speeches
and articles from the definition of honoraria in the 1992
amendment, see supra, at 460; in an elaborate, nearly 600-word provision with which it later exempted Department of
Defense military school faculty and students from the ban; [note 25]
or in neither. The process of drawing a proper nexus, even
more than the defense of the statute's application to senior
employees, would likely raise independent constitutional concerns
whose adjudication is unnecessary to decide this case.
Cf. supra, at 478. We believe the Court of Appeals properly
left to Congress the task of drafting a narrower statute. [note 26]
[513 U.S. 454, 480] Insofar as the judgment of the Court of Appeals affirms the injunction against enforcement of § 501(b) against respondents, it is affirmed; insofar as it grants relief to parties not before the Court, it is reversed. The case is remanded for further proceedings consistent with this opinion.
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 (GS1,
step 1) and $86,589 (GS15, step 10). 5 U.S.C. § 5332 (1988 ed., Supp. V).
According to OPM, the mean grade was GS9, 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 GS7 "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. 5862.
- "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 GS16 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 [513 U.S. 454, 464] actual
experience of difficulty, and one can hypothesize rules of thumb that
could constrain government discretion." 990 F.2d, at 12761277.
- 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.,
- See A. Turner, Nathaniel Hawthorne: A Biography 170187 (1980);
N. Arvin, Herman Melville 259260 (1950); G. Allen, The Solitary Singer:
A Critical Biography of Walt Whitman 319321, 408 (1985); H. Merwin,
The Life of Bret Harte 3334 (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 386387, 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 [513 U.S. 454, 468] will promote the efficiency of the [civil] service." Arnett v. Kennedy, 416
U.S. 134, 160161 (1974). The plaintiff in that case stood accused of several
work-related misdeeds, including making false and defamatory statements
against co-workers. The plurality characterized the employee's
false accusation that his superiors had accepted a bribe as "not protected
by the First Amendment." Id., at 158159. Thus, the Arnett plurality
merely cited Pickering to support a general statute's post hoc application
to a single employee's arguably unprotected speech.
- As of September 30, 1992, the Federal Government employed 1,680,516
workers between grades GS1 and GS15. Office of Personnel Management,
Demographic Profile of the Federal Workforce, App. 2, p. 79 (Sept.
- 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. 4546, 5556, 65, 7475, 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 4155 (discussing Walt Whitman's speeches and nonfiction
- 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 2223. 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 1314. 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 35, 1920.
- "[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-[513 U.S. 454, 476]volved isolated instances of speech that had already happened. See, e. g.,
Connick v. Myers, 461 U.S. 138, 151152 (1983). We deferred to the
Government's predictions in upholding the Hatch Act, see Public Workers
v. Mitchell, 330 U.S. 75, 100101 (1947), but that statute's employee-protective
rationale provided much stronger justification for a proscriptive
rule than does the Government's interest in workplace efficiency. See
supra, at 470471. Deferring to the Government's speculation about the
pernicious effects of thousands of articles and speeches yet to be written
or delivered would encroach unacceptably on the First Amendment's protections.
Cf. Federal Election Comm'n v. National Conservative Political
Action Comm., 470 U.S. 480, 498 (1985) (statute restricting political
contributions violated First Amendment where "exchange of political favors
for uncoordinated expenditures remain[ed] a hypothetical possibility
and nothing more").
- 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
GS16 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. 24132414.
- 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, 180183 (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.
Justice O'Connor, concurring in part and dissenting in part.
[513 U.S. 454, 480] 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.
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).
[513 U.S. 454, 481] In setting out the employees' interests in this case, the
Court draws a meaningful distinction between the ex ante
prohibition of certain kinds of speech and the ex post punishment
of discrete, unforeseeable disturbances. See ante, at
466468. There is some force to the Court's observation,
because ex ante rules, in contrast to ex post punishments,
carry risks of overinclusiveness and underinclusiveness.
Nevertheless, reliance on the ex ante/ ex post distinction is
not a substitute for the case-by-case application of Pickering.
There are many circumstances in which the Government as
employer is likely to prefer the codification of its policies as
workplace rules (which, incidentally, provide notice to employees)
to the ad hoc, on-the-job reactions that have been
standard fare in many of our employment cases. In most
such circumstances, the Government will be acting well
within its bounds. I see little constitutional difference, for
example, between a rule prohibiting employees from being
"'rude to customers, '" see Waters, supra, at 673, and the
upbraiding or sanctioning of an employee post hoc for isolated
acts of impudence. To draw the line based on a distinction
between ex ante rules and ex post punishments, in
my view, overgeneralizes and threatens undue interference
with "the government's mission as employer," 511 U.S., at
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
[513 U.S. 454, 482] of the nearly two million members of respondent class, it
doubtless inhibits some speech on matters of substantial public
interest. In my view, the impact of the honoraria ban
upon this class of employees' interests in speaking out as
citizens, rather than as employees, cannot be gainsaid.
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, 2629 (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
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
[513 U.S. 454, 483] rality went on to recognize. As the magnitude of intrusion
on employees' interests rises, so does the Government's burden
of justification. Cf. Connick, 461 U.S., at 150 ("[T]he
State's burden in justifying a particular discharge varies depending
upon the nature of the employee's expression"); id.,
at 151152 (finding "a wide degree of deference" appropriate
where employee's speech touched only peripherally on matters
of public concern). Thus, in Waters, the plurality noted
that "[i]n many such situations the government may have to
make a substantial showing that the speech is, in fact, likely
to be disruptive before it may be punished." 511 U.S., at
674. This case presents one such situation.
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 470477.
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 Comm'n 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.,
[513 U.S. 454, 484] 468 U.S. 364, 401, n. 27 (1984) (noting that the Hatch Act
"evolved over a century of governmental experience with
less restrictive alternatives that proved to be inadequate to
maintain the effective operation of government").
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, 5253 (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,
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
[513 U.S. 454, 485] of its latitude. The bare assertion of interest in a wide-ranging prophylactic ban here, without any showing that
Congress considered empirical or anecdotal data pertaining to abuses by lower echelon Executive Branch employees,
cannot suffice to outweigh the substantial burden on the 1.7 million affected employees. I agree with the Court that
§ 501 is unconstitutional to the extent that it bars this class of employees from receiving honoraria for expressive activities
that bear no nexus to Government employment.
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 honoraria 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 4546 (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
[513 U.S. 454, 486] last resort." Broadrick v. Oklahoma, 413 U.S. 601, 613
(1973). Accordingly, we have observed that "[i]t is not the
usual judicial practice,… nor do we consider it generally
desirable, to proceed to an overbreadth issue unnecessarily."
Board of Trustees of State Univ. of N. Y. v. Fox, 492 U.S.
469, 484485 (1989); see also New York v. Ferber, 458 U.S.
747, 768 (1982) (footnotes omitted) ("By focusing on the factual
situation before us, and similar cases necessary for development
of a constitutional rule, we face 'flesh-and-blood'
legal problems with data 'relevant and adequate to an informed
judgment'"). The class before us, though defined
broadly, consists of people who stand to benefit generally
from the invalidation of this statute as applied. Because,
as respondents freely admit, their central objective may be
achieved by an as-applied challenge, see Brief for Respondents
4546, I agree that the Court has little warrant to
venture into the more difficult and uncertain overbreadth
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
The Court assumes that it would venture into judicial legislation
were it to invalidate the provision as it applies to
[513 U.S. 454, 487] no-nexus speech. But it is equally, if not more, inconsistent
with congressional intent to strike a greater portion of the
statute than is necessary to remedy the problem at hand.
Although our jurisprudence in this area is hardly a model of
clarity, this Court has on several occasions declared a statute
invalid as to a particular application without striking the
entire provision that appears to encompass it. In United
States v. Grace, 461 U.S. 171 (1983), for example, the Court
addressed the constitutionality of a federal statute making
it unlawful to "parade, stand, or move in processions or assemblages
in the Supreme Court Building or grounds," or
"to display therein any flag, banner, or device designed or
adapted to bring into public notice any party, organization,
or movement." 40 U.S.C. § 13k. Finding the statute's
extension to public fora inadequately justified, the Court
deemed the provision unconstitutional as applied to the sidewalks
surrounding the Supreme Court. Grace, supra, at
183. In Tennessee v. Garner, 471 U.S. 1 (1985), the Court
invalidated a state provision permitting police officers to use
"'all the necessary means to effect the arrest'" of a fleeing
or forcibly resisting defendant only insofar as it authorized
the use of deadly force against an unarmed, nondangerous
suspect. Id., at 4, 22. In Brockett v. Spokane Arcades,
Inc., 472 U.S. 491 (1985), the Court invalidated a state obscenity
statute "only insofar as the word 'lust' is taken to
include normal interest in sex." Id., at 504505.
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 material[,]…
[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 "[p]artial 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
[513 U.S. 454, 488] challenged provision was invalid." Id., at 506. In Brockett
itself, the state statute contained a severability clause announcing
that the remainder of the Act would continue in
effect should "any provision of this act or its application to
any person or circumstance" be held invalid. Id., at 506,
n. 14. Because the opinions in Grace and Garner made no
mention of the existence of statutory severability clauses,
these cases can perhaps best be explained as having involved
implied severability. After delineating the range of the
statute's impermissible applications, the Court implicitly
concluded that the legislatures at issue Congress in Grace
and the Tennessee Legislature in Garner would have preferred
that the remainder of the statutes continue intact.
These cases are entirely consistent with our severability
precedents, in which we have held that "Congress' silence is
just that silence and does not raise a presumption against
severability." Alaska Airlines, Inc. v. Brock, 480 U.S. 678,
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 honoraria
of employees below GS16 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, 8283 (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
[513 U.S. 454, 489] legislative history confirms, that these Government employees, not the parties to this case, were the statute's principal
targets. See, e. g., 990 F.2d, at 1278 (describing floor debates at which speakers continually referred to abuses by
"Members of Congress" as the impetus for reform). As for employees below GS16, it seems to me clear that Congress
would have barred tax examiners from receiving honoraria for lectures on tax policy even if it could not bar the same
examiners from receiving honoraria for articles on low-cholesterol cooking. The balance of the provision serves a
laudable purpose and is capable of functioning independently once the improper application is excised. Cf. Alaska Airlines,
supra, at 684.
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.
Chief Justice Rehnquist, with whom Justice Scalia
and Justice Thomas join, dissenting.
[513 U.S. 454, 489] 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 GS16. I therefore dissent.
In 1991, in the aftermath of recommendations by two distinguished commissions, Congress adopted its present ban
[513 U.S. 454, 490] on the receipt of honoraria. Congress defined an "honorarium"
"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);
[513 U.S. 454, 491] Renton v. Playtime Theatres, Inc., 475 U.S. 41, 4748 (1986).
As a result, the ban does not raise the specter of Government control over the marketplace of ideas. Cf. Simon & Schuster,
supra, at 116. To the extent that the honoraria ban implicates
First Amendment concerns, the proper standard of review is found in our cases dealing with the Government's
ability to regulate the First Amendment activities of its employees.
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).
[513 U.S. 454, 492] In conducting this balance, we consistently have given substantial weight to government employers' reasonable predictions
of disruption, even when the speech involved was on a matter of public concern. Id., at 673674 (plurality opinion).
As we noted in Connick, "'the Government, as an employer, must have wide discretion and control over the management
of its personnel and internal affairs. '" 461 U.S., at 151 (quoting Arnett v. Kennedy, 416 U.S. 134, 168 (1974) (Powell,
J., concurring in part and concurring in result)).
These principles are reflected in our cases involving governmental
restrictions on employees' rights to engage in partisan political activity. [note 1] In Public Workers v. Mitchell, 330
U.S. 75 (1947), we examined § 9( a) of the Hatch Act, which prohibited officers and employees in the Executive Branch of
the Federal Government, with exceptions, from taking "'any active part in political management or in political campaigns.
'" Id., at 78. We analyzed § 9( a)'s strictures as applied to the partisan political activities of an industrial employee
at the United States Mint, and concluded that "[f]or regulation of employees it is not necessary that the act regulated
be anything more than an act reasonably deemed by Congress to interfere with the efficiency of the public service."
Id., at 101. Despite the fact that § 9(a) barred three million
public employees from taking "effective part in campaigns that may bring about changes in their lives, their
fortunes, and their happiness," id., at 107 (Black, J., dissenting), we held that if in Congress' judgment "efficiency may
be best obtained by prohibiting active participation by classi-[513 U.S. 454, 493]fied employees in politics as party officers or workers," there
was no constitutional objection, id., at 99.
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
reaffirm[ed] the Mitchell holding," id., at 556, because
"neither the First Amendment nor any other provision
of the Constitution invalidate[d] 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. [note 2] See Letter Carriers, supra,
at 566. Rather, the Court recognized that a major thesis of
the Hatch Act was that
"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
[513 U.S. 454, 494] hazards to fair and effective government." 413 U.S.,
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
9596; Letter Carriers, supra, at 564567.
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 interestprevention 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 461462. 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 GS16, who but for 5 U.S.C. app. 501( b)
would receive 'honoraria', as defined in 5 U.S.C. app.
505(3)." App. 124125. 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.,
[513 U.S. 454, 495] ante, at 463, n. 6. This artificially narrow prism of class
members, however, is the focus of the Court's entire First Amendment discussion.
The class definition speaks of anyone who would receive an honorarium but for the statute. App. 124125. 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 honoraria
in the vast rank and file of federal employees below grade GS16." Ante, at 472; ante, at 475476, and n. 21. [note 3]
The Court recognizes, however, 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. '" Ante, at 475, n. 21 (quoting Waters, 511 U.S., at 673 (plurality opinion)).
[513 U.S. 454, 496] Prior to enactment of the current honoraria ban, Congress
was informed by two distinguished commissions that its previous
limitations on honoraria were inadequate. The 1989
Quadrennial Commission recommended that "Congress enact
legislation abolishing the practice of accepting honoraria in
all three branches." Fairness for Our Public Servants: Report
of the 1989 Commission on Executive, Legislative and
Judicial Salaries vi (Dec. 1988). To Serve With Honor: Report
of the President's Commission on Federal Ethics Law
Reform (Mar. 1989) (hereinafter Wilkey Commission) echoed
many of the Quadrennial Commission's concerns:
"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. Honoraria
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
"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 3536
The Wilkey Commission "recognize[d] that banning honoraria
would have a substantial financial cost to many officials,"
id., at 36, but determined that "the current ailment is
[513 U.S. 454, 497] a serious one and that this medicine is no more bitter than is needed to cure the patient," ibid. The Wilkey Commission
also was aware that its recommendations covered not only high-level federal employees, [note 4] but it "regard[ed] the current
state of affairs as to honoraria in particular as unacceptable
in the extreme, and believe[d] that [the Government
could not] wait until an unspecified date in the future to end
this harmful practice." Id., at 38. [note 5]
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-[513 U.S. 454, 498]ployees below grade GS16. The theory underlying the
Court's distinction that federal employees below grade
GS16 have negligible power to confer favors on those who
might pay to hear them speak or to read their articles is
seriously flawed. Tax examiners, bank examiners, enforcement
officials, or any number of federal employees have substantial
power to confer favors even though their compensation
level is below grade GS16.
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
[513 U.S. 454, 499] and employees in the Executive Branch of the Federal Government
from taking "'any active part in political management
or in political campaigns. '" Mitchell, supra, at 78.
The penalty for violation was dismissal from office. 330
U.S., at 79. Since the right to participate in a political campaign
is surely secured in the abstract by the First Amendment,
see, e. g., Buckley v. Valeo, 424 U.S. 1, 15 (1976) (per
curiam), it can hardly be said that the Act protected the
rights of workers who wished to engage in partisan political
activity. One of the purposes of the Act was assuredly to
free employees who did not wish to become engaged in politics
from requests by their superiors to contribute money or
time, but to the extent the Act protected these employees it
undoubtedly limited the First Amendment rights of those
who did wish to take an active part in politics.
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
[513 U.S. 454, 500] makes for a "series of appearances, speeches, or articles," far from undermining the statute's basic purpose, demonstrates
that Congress was sensitive to the need for inhibiting as little speech consistent with its responsibility of ensuring that
its employees perform their duties impartially and that there is no appearance of impropriety. Reply Brief for United
States 1213. One is far less likely to undertake a "series" of speeches or articles without being paid than he is to make
a single speech or write a single article without being paid. Congress reasonably could have concluded that the number
of cases where an employee wished to deliver a "series" of speeches would be much smaller than the number of requests
to give individual speeches or write individual articles.
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. [note 6] Cf. Waters, supra, at 664666 (plurality
opinion) (analyzing termination of an employee based upon statements critical of the employer); Rankin v. McPherson,
483 U.S. 378, 381382 (1987) (analyzing termination of an employee based upon a comment about an attempted assassination
of President Reagan); Pickering, 391 U.S., at 564 (analyzing termination of an employee based upon a letter critical
of the school board). Furthermore, the honoraria ban exempts from its prohibition travel and other expenses re-[513 U.S. 454, 501]lated to employee speech. See 5 U.S.C. App. § 505(3) (1988 ed., Supp. V); 5 CFR § 2636.203 (1994). Because there is
only a limited burden on respondents' First Amendment rights, Congress reasonably could have determined that its
paramount interests in preventing impropriety and the appearance of impropriety in its work force justified the honoraria
ban. See Civil Service Comm'n v. Letter Carriers, supra; Public Workers v. Mitchell, 330 U.S. 75 (1947).
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 honoraria
by all Executive Branch employees below grade GS16. 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).
One would expect, at the conclusion of its discussion in Parts IIV, 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 GS16 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-[513 U.S. 454, 502]ernment employment violated the First Amendment, I could not agree with the Court's remedy. [note 7]
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 172173 (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 GS16 even where there is a
nexus between the honoraria and the employees' Government employment. Ante, at 479480. [note 8] Even respondents
acknowledge that the central aim of their litigation could "be achieved by a remedy similar to the one urged by the governmentby holding the ban invalid as applied to respond-[513 U.S. 454, 503] ents' writing and speaking activities, which have no nexus to their federal employment." Brief for Respondents 4546.
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 GS16 who seek honoraria that are unrelated to their Government
- 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 7980, 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 "[b]ecause 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
- 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 GS16.
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 GS16. Cf. ante, at 472,
- 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 GS16 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 GS16, 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.