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decided: May 31, 1994.



O'connor, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and Souter and Ginsburg, JJ., joined. Souter, J., filed a concurring opinion. Scalia, J., filed an opinion concurring in the judgment, in which Kennedy and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, in which Blackmun, J., joined.

Author: O'connor

JUSTICE O'CONNOR announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE SOUTER, and JUSTICE GINSBURG join.

In Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983), we set forth a test for determining whether speech by a government employee may, consistently with the First Amendment, serve as a basis for disciplining or discharging that employee. In this case, we decide whether the Connick test should be applied to what the government employer thought was said, or to what the trier of fact ultimately determines to have been said.


This case arises out of a conversation that respondent Cheryl Churchill had on January 16, 1987, with Melanie Perkins-Graham. Both Churchill and Perkins-Graham were nurses working at McDonough District Hospital; Churchill was in the obstetrics department, and Perkins-Graham was considering transferring to that department. The conversation took place at work during a dinner break. Petitioners heard about it, and fired Churchill, allegedly because of it. There is, however, a dispute about what Churchill actually said, and therefore about whether petitioners were constitutionally permitted to fire Churchill for her statements.

The conversation was overheard in part by two other nurses, Mary Lou Ballew and Jean Welty, and by Dr. Thomas Koch, the clinical head of obstetrics. A few days later, Ballew told Cynthia Waters, Churchill's supervisor, about the incident. According to Ballew, Churchill took "the cross trainee into the kitchen for . . . at least 20 minutes to talk about [Waters] and how bad things are in [obstetrics] in general." 977 F.2d 1114, 1118 (CA7 1992). Ballew said that Churchill's statements led Perkins-Graham to no longer be interested in switching to the department. Supplemental App. of Defendants-Appellees in No. 91-2288 (CA7), p. 60.

Shortly after this, Waters met with Ballew a second time for confirmation of Ballew's initial report. Ballew said that Churchill "was knocking the department" and that "in general [Churchill] was saying what a bad place [obstetrics] is to work." Ballew said she heard Churchill say Waters "was trying to find reasons to fire her." Ballew also said Churchill described a patient complaint for which Waters had supposedly wrongly blamed Churchill. Id., at 67-68.

Waters, together with petitioner Kathleen Davis, the hospital's vice president of nursing, also met with Perkins-Graham, who told them that Churchill "had indeed said unkind and inappropriate negative things about [Waters]." Id., at 228. Also, according to Perkins-Graham, Churchill mentioned a negative evaluation that Waters had given Churchill, which arose out of an incident in which Waters had cited Churchill for an insubordinate remark. Ibid. The evaluation stated that Churchill "promotes an unpleasant atmosphere and hinders constructive communication and cooperation," 977 F.2d at 1118, and "exhibits negative behavior towards [Waters] and [Waters'] leadership through her actions and body language"; the evaluation said Churchill's work was otherwise satisfactory, id., at 1116. Churchill al-legedly told Perkins-Graham that she and Waters had discussed the evaluation, and that Waters "wanted to wipe the slate clean . . . but [Churchill thought] this wasn't possible." Supplemental App. of Defendants-Appellees in No. 91-2288 (CA7), p. 228. Churchill also allegedly told Perkins-Graham "that just in general things were not good in OB and hospital administration was responsible." Id., at 229. Churchill specifically mentioned Davis, saying Davis "was ruining MDH." Ibid. Perkins-Graham told Waters that she knew Waters and Davis "could not tolerate that kind of negativism." Ibid.

Churchill's version of the conversation is different. For several months, Churchill had been concerned about the hospital's "cross-training" policy, under which nurses from one department could work in another when their usual location was overstaffed. Churchill believed this policy threatened patient care because it was designed not to train nurses but to cover staff shortages, and she had complained about this to Davis and Waters. According to Churchill, the conversation with Perkins-Graham primarily concerned the cross-training policy. 977 F.2d at 1118. Churchill denies that she said some of what Ballew and Perkins-Graham allege she said. She does admit she criticized Kathy Davis, saying her staffing policies threatened to "ruin" the hospital because they "seemed to be impeding nursing care." Ibid. She claims she actually defended Waters and encouraged Perkins-Graham to transfer to obstetrics. Ibid.

Koch's and Welty's recollections of the conversation match Churchill's. Id., at 1122. Davis and Waters, however, never talked to Koch or Welty about this, and they did not talk to Churchill until the time they told her she was fired. Moreover, Churchill claims, Ballew was biased against Churchill because of an incident in which Ballew apparently made an error and Churchill had to cover for her. Brief for Respondents 9, n. 12.

After she was discharged, Churchill filed an internal grievance. The president of the hospital, petitioner Stephen Hopper, met with Churchill in regard to this and heard her side of the story. App. to Pet. for Cert. 75-77. He then reviewed Waters' and Davis' written reports of their conversations with Ballew and Perkins-Graham, and had Bernice Magin, the hospital's vice president of human resources, interview Ballew one more time. Supplemental App. of Defendants-Appellees in No. 91-2288 (CA7), pp. 108, 139-142. After considering all this, Hopper rejected Churchill's grievance.

Churchill then sued under Rev. Stat. § 1979, 42 U.S.C. § 1983, claiming that the firing violated her First Amendment rights because her speech was protected under Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983). In May 1991, the United States District Court for the Central District of Illinois granted summary judgment to petitioners. The court held that neither version of the conversation was protected under Connick : Regardless of whose story was accepted, the speech was not on a matter of public concern, and even if it was on a matter of public concern, its potential for disruption nonetheless stripped it of First Amendment protection. Therefore, the court held, management could fire Churchill for the conversation with impunity. App. to Pet. for Cert. 45-49.

The United States Court of Appeals for the Seventh Circuit reversed. 977 F.2d 1114 (1992). The court held that Churchill's speech, viewed in the light most favorable to her, was protected speech under the Connick test: It was on a matter of public concern--"the hospital's [alleged] violation of state nursing regulations as well as the quality and level of nursing care it provides its patients," id., at 1122--and it was not disruptive, id., at 1124.

The court also concluded that the inquiry must turn on what the speech actually was, not on what the employer thought it was. "If the employer chooses to discharge the employee without sufficient knowledge of her protected speech as a result of an inadequate investigation into the employee's conduct," the court held, "the employer runs the risk of eventually being required to remedy any wrongdoing whether it was deliberate or accidental." Id., at 1127 (footnote omitted).

We granted certiorari, 509 U.S. (1993), to resolve a conflict among the Circuits on this issue. Compare the decision below with Atcherson v. Siebenmann, 605 F.2d 1058 (CA8 1979); Wulf v. Wichita, 883 F.2d 842 (CA10 1989); Sims v. Metropolitan Dade County, 972 F.2d 1230 (CA11 1992).



There is no dispute in this case about when speech by a government employee is protected by the First Amendment: To be protected, the speech must be on a matter of public concern, and the employee's interest in expressing herself on this matter must not be outweighed by any injury the speech could cause to "'the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'" Connick, supra, at 142 (quoting Pickering v. Board of Ed. of Township High School Dist., 391 U.S. 563, 568, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968)). It is also agreed that it is the court's task to apply the Connick test to the facts. 461 U.S., at 148, n. 7, and 150, n. 10.

The dispute is over how the factual basis for applying the test--what the speech was, in what tone it was delivered, what the listener's reactions were, see id., at 151-153--is to be determined. Should the court apply the Connick test to the speech as the government employer found it to be, or should it ask the jury to determine the facts for itself? The Court of Appeals held that the employer's factual conclusions were irrelevant, and that the jury should engage in its own factfinding. Petitioners argue that the employer's factual conclusions should be dispositive. Respondents take a middle course: They suggest that the court should accept the employer's factual conclusions, but only if those conclusions were arrived at reasonably, see Brief for Respondents 39, something they say did not happen here.

We agree that it is important to ensure not only that the substantive First Amendment standards are sound, but also that they are applied through reliable procedures. This is why we have often held some procedures--a particular allocation of the burden of proof, a particular quantum of proof, a particular type of appellate review, and so on--to be constitutionally required in proceedings that may penalize protected speech. See Freedman v. Maryland, 380 U.S. 51, 58-60, 13 L. Ed. 2d 649, 85 S. Ct. 734 (1965) (government must bear burden of proving that speech is unprotected); Speiser v. Randall, 357 U.S. 513, 526, 2 L. Ed. 2d 1460, 78 S. Ct. 1332 (1958) (same); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775-778, 89 L. Ed. 2d 783, 106 S. Ct. 1558 (1986) (libel plaintiff must bear burden of proving that speech is false); Masson v. New Yorker Magazine, Inc., 501 U.S. , , 115 L. Ed. 2d 447, 111 S. Ct. 2419 (1991) (actual malice must be proved by clear and convincing evidence); Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 503-511, 80 L. Ed. 2d 502, 104 S. Ct. 1949 (1984) (appellate court must make independent judgment about presence of actual malice).

These cases establish a basic First Amendment principle: Government action based on protected speech may under some circumstances violate the First Amendment even if the government actor honestly believes the speech is unprotected. And though JUSTICE SCALIA suggests that this principle be limited to licensing schemes and to "deprivations of the freedom of speech specifically through the judicial process," post, at 2 (emphasis in original), we do not think the logic of the cases supports such a limitation. Speech can be chilled and punished by administrative action as much as by judicial processes; in no case have we asserted or even implied the contrary. In fact, in Speiser v. Randall, we struck down procedures, on the grounds that they were insufficiently protective of free speech, which involved both administrative and judicial components. Speiser, like this case, dealt with a government decision to deny a speaker certain benefits--in Speiser a tax exemption, in this case a government job--based on what the speaker said. Our holding there did not depend on the deprivation taking place "specifically through the judicial process," and we cannot see how the result could have been any different had the process been entirely administrative, with no judicial review. We cannot sweep aside Speiser and the other cases cited above as easily as JUSTICE SCALIA proposes.

Nonetheless, not every procedure that may safeguard protected speech is constitutionally mandated. True, the procedure adopted by the Court of Appeals may lower the chance of protected speech being erroneously punished. A speaker is more protected if she has two opportunities to be vindicated--first by the employer's investigation and then by the jury--than just one. But each procedure involves a different mix of administrative burden, risk of erroneous punishment of protected speech, and risk of erroneous exculpation of unprotected speech. Though the First Amendment creates a strong presumption against punishing protected speech even inadvertently, the balance need not always be struck in that direction. We have never, for instance, required proof beyond a reasonable doubt in civil cases where First Amendment interests are at stake, though such a requirement would protect speech more than the alternative standards would. Compare, e. g., California ex rel. Cooper v. Mitchell Brothers' Santa Ana Theater, 454 U.S. 90, 93, 70 L. Ed. 2d 262, 102 S. Ct. 172 (1981) (per curiam), with McKinney v. Alabama, 424 U.S. 669, 686, 47 L. Ed. 2d 387, 96 S. Ct. 1189 (1976) (Brennan, J., concurring in judgment in part). Likewise, the possibility that defamation liability would chill even true speech has not led us to require an actual malice standard in all libel cases. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761, 86 L. Ed. 2d 593, 105 S. Ct. 2939 (1985) (plurality opinion); Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974). Nor has the possibility that overbroad regulations may chill commercial speech convinced us to extend the overbreadth doctrine into the commercial speech area. Bates v. State Bar of Arizona, 433 U.S. 350, 380-381, 53 L. Ed. 2d 810, 97 S. Ct. 2691 (1977).

We have never set forth a general test to determine when a procedural safeguard is required by the First Amendment--just as we have never set forth a general test to determine what constitutes a compelling state interest, see Boos v. Barry, 485 U.S. 312, 324, 99 L. Ed. 2d 333, 108 S. Ct. 1157 (1988), or what categories of speech are so lacking in value that they fall outside the protection of the First Amendment, New York v. Ferber, 458 U.S. 747, 763-764, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1982), or many other matters--and we do not purport to do so now. But though we agree with JUSTICE SCALIA that the lack of such a test is inconvenient, see post, at 3, this does not relieve us of our responsibility to decide the case that is before us today. Both JUSTICE SCALIA and we agree that some procedural requirements are mandated by the First Amendment and some are not. See post, at 1. None of us have discovered a general principle to determine where the line is to be drawn. See post, at 1-3. We must therefore reconcile ourselves to answering the question on a case-by-case basis, at least until some workable general rule emerges.

Accordingly, all we say today is that the propriety of a proposed procedure must turn on the particular context in which the question arises--on the cost of the procedure and the relative magnitude and constitutional significance of the risks it would decrease and increase. And to evaluate these factors here we have to return to the issue we dealt with in Connick and in the cases that came before it: What is it about the government's role as employer that gives it a freer hand in regulating the speech of its employees than it has in regulating the speech of the public at large?


We have never explicitly answered this question, though we have always assumed that its premise is correct--that the government as employer indeed has far broader powers than does the government as sovereign. See, e. g., Pickering, supra, at 568; Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 564, 37 L. Ed. 2d 796, 93 S. Ct. 2880 (1973); Connick, 461 U.S., at 147. This assumption is amply borne out by considering the practical realities of government employment, and the many situations in which, we believe, most observers would agree that the government must be able to restrict its employees' speech.

To begin with, even many of the most fundamental maxims of our First Amendment jurisprudence cannot reasonably be applied to speech by government employees. The First Amendment demands a tolerance of "verbal tumult, discord, and even offensive utterance," as "necessary side effects of . . . the process of open debate," Cohen v. California, 403 U.S. 15, 24-25, 29 L. Ed. 2d 284, 91 S. Ct. 1780 (1971). But we have never expressed doubt that a government employer may bar its employees from using Mr. Cohen's offensive utterance to members of the public, or to the people with whom they work. "Under the First Amendment there is no such thing as a false idea," Gertz, supra, at 339; the "fitting remedy for evil counsels is good ones," Whitney v. California, 274 U.S. 357, 375, 71 L. Ed. 1095, 47 S. Ct. 641 (1927) (Brandeis, J., concurring). But when an employee counsels her co-workers to do their job in a way with which the public employer disagrees, her managers may tell her to stop, rather than relying on counter-speech. The First Amendment reflects the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S. 254, 270, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964). But though a private person is perfectly free to uninhibitedly and robustly criticize a state governor's legislative program, we have never suggested that the Constitution bars the governor from firing a high-ranking deputy for doing the same thing. Cf. Branti v. ...

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