SUPREME COURT OF THE UNITED STATES

No. 93–1170

UNITED STATES, et al., PETITIONERS

v. NATIONAL TREASURY EMPLOYEES

UNION et al.

on writ of certiorari to the united states court of appeals for the district of columbia circuit

[February 22, 1995]

Justice O'Connor, concurring in the judgment in part and dissenting in part.

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., 391 U. S. 563 (1968), and culminating in its most recent application, Waters v. Churchill, 511 U. S. ___ (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 pre-

sents 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).

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 11–13. 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 ___ (slip op., at 10), 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," Waters, supra, at ___ (slip op., at 12).

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 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, 26–29 (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 ban.

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 ___ (slip op., at 10). But this principle has its limits, as the Waters plurality 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 151–152 (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 ___ (slip op., at 11). 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 15–23. 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., 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. ___, ___ (1994) (slip op., at 9). 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, prophylactic ban.

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 ___ (slip op., at 12). In this case, however, the Government has exceeded the limits 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 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 45–46 (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 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 University of N.Y. v. Fox, 492 U. S. 469, 484–485 (1989); see also New York v. Ferber, 458 U. S. 747, 768 (1982) ("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'") (footnotes omitted). 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 45–46, I agree that the Court has little warrant to venture into the more difficult and uncertain overbreadth terrain.

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 common sense 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 line.

The Court assumes that it would venture into judicial legislation were it to invalidate the provision as it applies to 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 504–505.

In Brockett, the Court declared that, "where 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 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, 686 (1987).

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 GS-16 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, 82–83 (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 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 GS-16, 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.