The Volokh Conspiracy
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[This post is co-authored with Seth Barrett Tillman.]
Let's take a step back from the specific context of impeachment. In this post, we'd like to discuss a more foundational question: as a general matter, why do, or why should, different positions in the government receive different levels of free speech rights?
The House Judiciary Committee report took the position that the President's free speech rights are more limited than the rights of a private citizen. The report favorably cited posts by co-bloggers Professors Jonathan Adler and Ilya Somin, as well as other academics who reached similar conclusions. The Committee apparently assumed that the President's free speech rights could be analogized to those of civil servants. The committee staff reported that the First Amendment "applies very differently to speech by government officials and public employees," and the President "is no ordinary citizen." The report continued, "the President is subject to different rules than private citizens and can be held accountable for his expression (including all expression relating to his office) in ways that [private citizens] cannot be." In our view, there are problems with analogizing the President to civil servants. In this post, we will explain our thinking. Our views concern First Amendment rights in general, and not the circumstances of the impeachment process in particular. But our general position would also apply in the specific impeachment context.
In cases like Pickering v. Board of Education (1968) and Garcetti v. Ceballos (2006), the Supreme Court explained that certain governmental employees have reduced free speech rights in certain contexts. This doctrine is a branch or application of the First Amendment. In Garcetti, Justice Kennedy summarized the doctrine:
Pickering provides a useful starting point in explaining the Court's doctrine. There the relevant speech was a teacher's letter to a local newspaper addressing issues including the funding policies of his school board. "The problem in any case," the Court stated, "is to arrive at a balance between the interests of the teacher, 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." The Court found the teacher's speech "neither [was] shown nor can be presumed to have in any way either impeded the teacher's proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally." Thus, the Court concluded that "the interest of the school administration in limiting teachers' opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public."
Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. This consideration reflects the importance of the relationship between the speaker's expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations.
For decades, the Pickering test has been subject to widespread criticism. This balancing test is difficult to apply in many different contexts. Justice Kennedy recognized this difficulty in his opinion:
To be sure, conducting these inquiries sometimes has proved difficult. This is the necessary product of "the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors … to furnish grounds for dismissal." The Court's overarching objectives, though, are evident.
What would it mean to apply Pickering to the presidential impeachment process? Is the presidency analogous to the status of a civil servant? Our view is that the reduced free speech rights standards announced in Pickering should not apply to elected officials. Indeed, Pickering did not involve a constitutional claim brought by an elected official. Rather, this case involved free speech claims brought by a government employee–a public school teacher. This position was not subject to election.
As a general matter, we think it is a mistake to analogize the President, an elected official, to a full-time, permanent employee or civil servant. Elected public officials make policy; civil servants and other public employees carry out those policies. The case law permits the civil servants' speech to be muted so that the government-as-employer can carry out its policy goals. The goal is to ensure that elections remain meaningful, and that the government-as-employer can put forward its message, notwithstanding its employees who may take a different view. We do not suggest that the Pickering line of cases was correctly or incorrectly decided. Our point is more limited: Pickering offers civil servants some free speech protections, but it also allows the government-as-employer to impose some free speech limitations on its civil servants. Those free speech limitations make little or no sense when applied to elected officials.
The Judiciary Committee also analogized the President to senior executive branch officers. The report cited Professor Ilya Somin, who wrote "Donald Trump himself has fired numerous cabinet officials and other subordinates because they expressed views he didn't like." On its face, Pickering does not extend to the senior executive branch officers appointed by the President. Nor do we think that Pickering's policy rationales should extend to such positions, albeit for different reasons.
Senior appointed policy-making executive branch officers are removable by the President. If they lose the confidence of the President, for whatever reason, even for otherwise lawful speech, he can remove them. Absent constitutionally valid congressional tenure protections, these positions are at will. They are charged with carrying into execution the elected President's policy goals within the context of the legal system. We do not think that Pickering protects or should protect these at-will positions who serve at the pleasure of the appointing official. It would be a wholly new and novel claim to say that the President could not fire a cabinet secretary because of a speech the secretary gave. The First Amendment cannot provide a cause of action against such a "wrongful" termination on free speech grounds. (Here, we do not address here congressional protections of tenure.)
Pickering serves an arguably important role: it ensures that millions of civil servants nationwide enjoy a large share of free speech rights that private citizens enjoy. It would be a tragic loss to democracy if these citizens surrendered all their free speech rights during their entire professional service that could last decades. We think these civil servants stand in a different position than at-will executive branch officers who may serve a four- or eight-year tenure, and will then return to the private sector. There are other reasons to reject the notion that Pickering's protections for civil servants' speech might apply or should apply to appointed senior executive branch officers. The President chooses his officers, but does not, as a general matter, staff or fill civil service positions. The President can remove his officers (in most circumstances), but he does not, as a general matter, have the power to remove civil servants from government employment. Executive branch officers are policy-makers; generally, most civil servants are not. For all these reasons, civil servants stand in a different position from executive branch officers. The President's relationship to his subordinate executive branch officers is one of a superior to inferiors. The President is elected; the senior officers are appointed. The President can nominate his senior officers. He can direct them. Generally, he can remove them at will. In other words, the free speech concerns that animate Pickering do not apply to senior executive branch officers. We do not suggest that appointed senior executive branch officers are more "important" than civil servants. Rather, these positions tend to exercise more policy-making powers. As a result, when they speak, their message is more readily mis-identified as that of the President they serve. Arguably, the President needs more control over them.
By contrast, the President is not a cabinet member, who works for a superior—other than the People who act through elections. Nor is the President a GS-15 who can be disciplined for speaking at a political rally. Treating the President as an appointed officer or a civil servant would eliminate the President's ability to act like a politician and party leader. With good reason, the elected President is not subject to the Hatch Act. He is expected to engage in overtly partisan speech. In our view, the President has more expansive free speech rights than civil servants, who have broader free speech rights than at-will executive-branch officers. There is a hierarchy for speech rights for these different positions. It is not the case that principal officers have more rights than inferior officers who have more rights than civil servants. Government officials and officers are not an undifferentiated mass, with identical First Amendment rights. Nor do these rights track the traditional status of positions in the government. Instead, we suggest that elected officials have the widest scope of free speech rights, civil servants enjoy some free speech rights which are subject to certain limitations, and that at-will presidential appointees enjoy the least. This result should not be surprising. Indeed, the whole point of nineteenth century civil service reforms was to insulate civil service positions from party politics, as opposed to transferring policy-making out of the hands of the elected government.
Finally, we do not hold a novel position about the President's free speech rights. During the Johnson impeachment trial, several senators articulated our view that the President ought to have free speech rights that are as expansive as those of private citizens.
Senator John Henderson of Missouri stated plainly that "the President, like other persons, is protected under" the First Amendment. "He too," Henderson continued, "has the right to make foolish speeches." Senator James Grimes of Iowa admitted that Johnson's speeches were "indiscreet, indecorous, improper, [and] vulgar." But he could not "attempt to repress the freedom of speech." Senator Peter Van Winkle of West Virginia said the First Amendment was "unquestionably of universal application," even to the President. Senator Joseph Fowler of Tennessee boasted that Johnson did no "more than exercise that liberty of speech guaranteed to him by the Constitution." Senator William Pitt Fessenden of Maine warned that removing the President for his speech would not only "den[y] him a right secured to every other citizen of the republic . . . but might deprive the people of the benefit of his opinion of public affairs." The President, Fessenden contended, has the right to communicate with the people. And the people have a right to hear those communications.
We do not here, nor did we in our prior post, cite these senators as holding the only view about the scope of the President's free speech rights in the impeachment context. We acknowledged that some senators who voted to convict, as well as the prosecuting House managers, rejected this free speech argument. Our goal was not to say, and we did not say, that the Johnson trial established the correct position. Rather, we raised this history to show that the issue was, and remains, fairly contestable. In 1868, there was a difference of opinion about what speech rights the President has. That same debate exists today. This issue is not clear. It is not settled. There is no controlling on-point judicial precedent. There is some on-point discussion from a prior presidential impeachment. And those debates from the Johnson Senate trial provide some support for our position. But we do not think this issue has been resolved or liquidated.
The Judiciary Committee report concluded that freedom of speech "applies very differently" to the President "by virtue of his office" than it does to "private citizens." Moreover, the Committee endorsed the views of constitutional scholars who relied on cases analogizing the President's free speech rights to the free speech rights of civil servants. Going forward, the House managers, acting as prosecutors, will have to explain how those cases are analogous to elected officials, including the President. The managers may contend that the President is only accountable to the People every four years during the election season. But during the gaps between elections, the People cannot act. So, during that interregnum, Congress acts as the President's superior—apparently in much the same way that the Board of Education acts as a teacher's superior. We reject this analogy between the President and civil servants. Congress is not the superior to the inferior President. They are both elected. They both make policy, within the confines of complying with the legal system. They are both authorized in different ways to control the government-as-employer. As a general matter, Congress does not stand in the role of the employer vis-a-vis the President. If the President has an employer, it is the People, not Congress through impeachment. And that role exists throughout the entirety of a President's four-year term, and not only during the short election season.
Pickering and Garcetti were cases about civil servants. These precedents do not furnish good analogies to justify removing elected officials for purported speech-related wrongs.
We close with another note of caution. Since January 6, many professors have formed firm conclusions on difficult and novel constitutional questions that have not been judicially resolved or otherwise clearly established in prior House and Senate impeachment proceedings. Some of these issues have never been adjudicated in any forum. Some academics strongly objected to our position that the President should have the full scope of traditional free speech rights in general, and in the impeachment process, in particular. But it is evident that this view was articulated during President Johnson's senate trial. Right or wrong, that view cannot be dismissed out of hand.
[Seth Barrett Tillman is a Lecturer at Maynooth University Department of Law, Ireland (Roinn Dlí Ollscoil Mhá Nuad).]