Case 5.3

Public Employee' Freedom of Speech and Administrative Efficiency: Rankin v. McPherson (1987)

Summary

Former clerical employee in county constable’s office brought suit against constable and county, alleging that she was denied her First and Fourteenth Amendment rights when she was fired by constable for political remark made to co employee during private conversation. The United States District Court for the Southern District of Texas entered summary judgment in favor of constable and county, and after remand…the court…entered judgment for constable and county, and deputy appealed. The Court of Appeals for the fifth Circuit…reversed and remanded, and certiorari was granted. The Supreme Court, Justice Marshall, held that: (1) statement by employee, made in course of conversation with co employee addressing policies of President’s administration, that, “if they go for him again, I hope they get him” dealt with matter of public concern, and (2) constable’s interest in discharging clerical employee in constable’s office for making statement did not outweigh employee’s rights under First Amendment.
Opinion
Justice Marshall delivered the opinion of the court.
The issue in this case is whether a clerical employee in a county constable’s office was properly discharged for remarking, after hearing of an attempt on the life of the President, “If they go for him again, I hope they get him.”


I

On January 12, 1981, respondent Ardith McPherson was appointed a deputy in the office of the constable of Harris County, Texas. The constable is an elected official who functions as a law enforcement officer. At the time of her appointment, McPherson, a black woman, was 19 years old and had attended college for a year, studying secretarial science. Her appointment was conditional for a 90-day probationary period.
Although McPherson's title was "deputy constable," this was the case only because all employees of the constable's office regardless of job function, were deputy constables...She was not a commissioned peace officer, did not wear a uniform, and was not authorized to make arrests or permitted to carry a gun. McPherson's duties were purely clerical. Her work station was a desk at which there was no telephone, in a room to which the public did not have any access. Her job was to type data from court papers into a computer that maintained an automated record of the status of civil process in the county. Her training consisted of a two days of instruction in the operation of her computer terminal.
On March, 30, 1981, McPherson and some fellow employees heard on a office radio that there had been an attempt to assassinate the President of the United States. Upon hearing that report, McPherson engaged a co-worker, Lawrence Jackson, who was apparently her boyfriend, in a brief conversation, which according to McPherson's uncontroversial testimony went as follows:
"Q: What did you say?
"A: I said I felt that would happen sooner or later.
"Q: Okay. And what did Lawrence say?
"A: Lawrence said, yeah, agreeing with me.
"Q: Okay. Now, when you-after Lawrence spoke, then what was your next comment?
"A: Well, we were talking-it's a wonder why they did that. I felt like it would be a black person that did that, because I feel like most of my kind is on welfare and CETA, and they use medicaid, and at the time, I was thinking that's what it was. "...But then after I said that, and then Lawrence said, yeah, he's cutting medicaid and food stamps. And I said, Yeah, welfare and CETA. I said, shoot, if they go for him again, I hope they get him."
McPherson's last remark was overheard by another deputy constable, who, unbeknownst to McPherson, was in the room at the time. The remark was reported to Constable Rankin, who summoned McPherson. McPherson readily admitted that she had made the statement, but testified that she told Rankin, upon being asked if she made the statement, "Yes, but I didn't mean anything by it."...After their discussion, Rankin fired McPherson.
McPherson brought suit in the United States District Court for the Southern District of Texas under 42 U.S.C, SS 1983, alleging that petitioner Rankin, in discharging her, had violated her constitutional rights under color of state law. She sought reinstatement, back pay, costs and fees, and other equitable relief.

II

It is clearly established that a state may not discharge an employee on the basis that infringes that employee's constitutionally protected interest in freedom of speech...Even though McPherson was merely a probationary employee, and even if she could have been discharged for any reason or for no reason at all., she may nonetheless be entitled to reinstatement if she was discharged foe exercising her constitutional right to freedom of expression...
The determination whether a public employer has properly discharged an employee for engaging in speech requires “a balance between the interests of the [employee], [sic] 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.”…This balancing is necessary in order to accommodate the dual role of the public employer as a provider of public services and as a government entity operating under the constraints of the First Amendment. On one hand, public employers are employers, concerned with the efficient function of their operations: review of every personnel decision made by a public employer could, in the long run, hamper the performance of public functions. On the other hand, “the threat of dismissal from public employment is…a potent means of inhibiting speech.”…Vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees’ speech.


A

The threshold question in applying this balancing test is whether McPherson’s speech may be “fairly characterized as constituting speech on a matter of public concern.”…”Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.”…The District Court apparently found that McPherson’s speech did not address the matter of public concern. The Court of Appeals rejected this conclusion, finding that “the life and death of the President are obviously matters of public concern.”…
Considering the statement in context…discloses that it plainly dealt with a matter of public concern. The statement was made in the course of a conversation addressing the policies of the President’s administration. It came on the heels of a news bulletin regarding what is certainly a matter of heightened public attention: an attempt on the life of the President. While a statement that amounted to a threat to kill the President would not be protect by the First Amendment, the District Court concluded, and we agree, that McPherson’s statement did not amount to a threat….The inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern. “[D]ebate on public issues should be uninhibited, robust, and wide-open, and…may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”…
“Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected.”


B


Because McPherson’s statement addressed a matter of public concern, [precedent] next requires that we balance McPherson’s interest in making her statement against “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”…The State bears a burden of justifying the discharge on legitimate grounds….
In performing the balancing, the statement will not be considered in a vacuum; the manner, time, and place of the employee’s expression are relevant, as is the context in which the dispute arose…
We have previously recognized as pertinent considerations whether the statement impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise….
These considerations, and indeed the very nature of the balancing test, make apparent that the state interest element of the test focuses on the effective functioning of the public employer’s enterprise. Interference with work, personnel relationships, or the speaker’s job performance can detract from the public employer’s function; avoiding such interference can be a strong state interest. From this perspective, however, petitioner fails to demonstrate a state interest that outweighs McPherson’s First Amendment rights. While McPherson’s statement was made at the workplace, there is no evidence that it interfered with the efficient functioning of the office. The Constable was evidently not afraid that McPherson had disturbed or interrupted other employee’s- he did not inquire to whom respondent had made the remark and testified that he ‘Was not concerned who she made it to,”…In fact, Constable Rankin testified that the possibility of interference with the functions of the Constable’s office had not been a consideration in his discharge of respondent and that he did not even inquire whether the remark had disrupted the work of the office.
Nor was there any danger that McPherson had discredited the office by making her statement in public. McPherson’s speech took place in an area to which there was ordinarily no public access; her remark was evidently made in a private conversation with another employee. There is no suggestion that any member of the general public was present of heard McPherson’s statement. Nor is there any evidence that employees other than Jackson who worked in the room even heard the remark. Not only was McPherson’s discharge unrelated to the functioning of the office, it was not based on any assessment by the constable that the remark demonstrated a character trait that made respondent unfit to perform her work.
While the facts underlying Rankin’s discharge of McPherson are, despite extensive proceedings in the District Court, still somewhat unclear, it is undisputed that he fired McPherson based on the content of her speech. Evidently because McPherson had made the statement and because the Constable believed that she “meant it,” he decided that she was not a suitable employee to have in a law enforcement agency. But in weighing the State’s interest in discharging an employee based on any claim that the content of a statement made by the employee somehow undermines the mission of the public employer, some attention must be paid to the responsibilities of the employee within the agency. The burden of caution employee’s bear with respect to the words they speak will vary with the extent of authority and public accountability the employee’s role entails. Where, as here, an employee serves no confidential, policymaking, or public contact role, the danger to the agency’s successful function from that employee’s private speech is minimal. We cannot believe that every employee in Constable Rankin’s office, whether computer operator, electrician, or file clerk, is equally required, on pain of discharge, to avoid any statement susceptible of being interpreted by the Constable as an indication that the employee may be unworthy of employment in his law enforcement agency. At some point, such concerns are so removed from the effective function of the public employer that they cannot prevail over the free speech rights of the public employee.
This is such a case. McPherson’s employment-related interaction with the Constable was apparently negligible. Her duties were purely clerical and were limited solely to the civil process function of the constable’s office. There is no indication that she would ever be in a position to further-or indeed to have any involvement with-the minimal law enforcement activity engaged in by the Constable’s office. Given the function of the agency, McPherson’s position in the office, and the nature of her statement, we are not persuaded that Rankin’s interest in discharging her outweighed her rights under the First Amendment.