New Orleans attorney and former U.S. Supreme Court litigant Sheila Myers says that she wishes the landmark public employee free-speech case that bears her name were not a “negative one for public employees.”
In 1983, the Supreme Court ruled in Connick v. Myers that Harry Connick, the district attorney in Orleans Parish, did not violate Myers’ First Amendment rights when he discharged her for distributing a questionnaire to her fellow assistant district attorneys in the office.
Ironically, nearly 20 years later, the major players in the case remain heavily involved in the legal community in the New Orleans area. Connick, the father of famous jazz musician Harry Connick Jr., is still the district attorney.
Myers practices criminal defense law in New Orleans. Both attorneys who argued the case before the Supreme Court still reside in New Orleans.
Their lives will be forever linked in what is considered the leading public employee free-speech case. “When a federal court has a public employee free-speech case, the first precedent it looks to is Connick v. Myers,” said Supreme Court practitioner Tom Goldstein.
Neither Myers nor Connick ever saw the case as a major First Amendment case. Myers said that she thought her act of distributing the questionnaire was fully authorized. For his part, Connick sees the case as an employee who disobeyed an order.
However, the 18-year-old case has become a landmark. “The case established a doctrine that has shaped the analysis of countless public employee free-speech cases,” says Robert O’Neil, author of The Rights of Public Employees.
The controversy: a transfer, a questionnaire
The controversy began after then-first assistant district attorney Dennis Waldron informed Myers that she was being transferred to a different section of the criminal court. At that time, Myers had been employed at the district attorney’s office for more than five years.
Believing the transfer to be unjust, Myers told Waldron that she objected to it. During their discussion, Myers complained about some other procedures in the office. Waldron informed her that others did not share her concerns. According to Myers, she told Waldron she would obtain information on these matters.
“He said ‘fine,’ and I regarded what I did as fully authorized,” she says. Myers distributed a 14-point questionnaire soliciting the views of her fellow staff members concerning office transfer policy. Some of the questions were:
After Myers distributed the questionnaire to 15 assistant district attorneys, Waldron phoned Connick and told him that Myers was creating a “mini-insurrection” within the office.
When Connick returned to the office, he informed Myers that she was being terminated for her refusal to accept the transfer. He also told her that her distribution of the questionnaire was an act of insubordination.
Myers sued in federal court, contending that she was fired in violation of her First Amendment free-speech rights. A district court sided with Myers, finding that the real reason for her termination was her constitutionally protected act of distributing her questionnaire about important public issues. The district court determined that the questionnaire had not “substantially interfered” with the workings of the D.A.’s office.
After the 5th U.S. Circuit Court of Appeals affirmed the lower court, Connick appealed to the U.S. Supreme Court — which agreed to review the case.
“When the court granted cert., I had this sinking feeling,” said Tulane law professor George Strickler Jr., who argued the case on behalf of Myers. “Plainly, we figured there were at least four justices who disagreed with the lower courts.” (For the Supreme Court to grant review of a decision, four justices must vote to hear the case.)
Similarly, New Orleans attorney William F. Wessel, who argued the case for Connick, said that “once the Supreme Court granted certiorari, we felt we would win.”
Supreme Court’s decision
Strickler and Wessel proved accurate about the outcome of the high court’s decision. On April 20, 1983, the court ruled 5-4 in favor of Connick.
Writing for the majority, Justice Byron White phrased the issue as: “whether the First and Fourteenth Amendments prevent the discharge of a state employee for circulating a questionnaire concerning internal office affairs.”
The majority’s phrasing of the issue foreshadowed its result, because a key inquiry in public employee free-speech cases was whether the speech in question touched on matters of public concern.
In its 1968 decision Pickering v. Board of Education, the Supreme Court determined that school board officials in Will County, Ill., violated the First Amendment rights of high school teacher Marvin Pickering when they fired him for writing a letter to the editor of the local newspaper. In his letter, Pickering criticized the board of education for its allocation of school funds between athletics and education.
The high court in Pickering wrote that the problem in public employee free-speech cases was balancing “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.”
White used the Pickering analysis to determine that the threshold question in a public employee-speech case was whether the speech touched on matters of public concern or public importance.
The majority ruled that nearly all of Myers’ questions were private internal matters, rather than issues of public concern. “Indeed, the questionnaire, if released to the public, would convey no information at all, other than the fact that a single employee is upset with the status quo,” White wrote.
However, White determined that the question of whether assistant district attorneys “feel pressured” to work in political campaigns did “touch upon a matter of public concern.”
“We believe it apparent that the issue of whether assistant district attorneys are pressured to work in political campaigns is a matter of interest to the community upon which it is essential that public employees be able to speak out freely without fear of retaliatory dismissal,” White wrote.
The majority then said that the next question was whether Myers’ interest in free speech on a matter of public concern outweighed Connick’s interest in a disruption-free working environment.
The majority sided with the employer’s efficiency interests. “When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate,” White wrote.
The tone of the majority’s opinion takes a pro-employer stance. For example, White wrote that “government offices could not function if every employment decision became a constitutional matter.”
Four justices dissented in an opinion written by Justice William Brennan. Brennan wrote that most of the subjects in Myers’ questionnaire “addressed matters of public concern that could reasonably be expected to be of interest to persons seeking to develop informed opinions about” the district attorney’s office.
Brennan argued that the majority “artificially” restricted “the concept of public concern.” He believed that the proper standard should be one similar to the standard articulated by the court in a student-speech case, Tinker v. Des Moines Independent Community School District. In Tinker, the high court ruled that student expression could not be punished unless school officials could reasonably forecast that the expression would cause a substantial disruption of the school environment.
Brennan concluded that the majority’s decision would “deter public employees from making critical statements” about the way in which government agencies operate.
Reflections by attorneys
Strickler says that Brennan was correct in his dissent when he predicted that the decision would chill critical employee speech. “The standard from the case on what is a matter of public interest has proved not to be very workable in the sense that we see very different opinions by the lower courts,” he said.
He said that in the trial court, his side “showed ample evidence that the questionnaire did not cause any inflammatory uprising or ‘mini-insurrection.’ ”
“This was the purest kind of speech by an employee,” Strickler said. “This had been an easy case for the lower courts and, I think, rightfully so.”
However, Strickler says that “plainly, the Supreme Court’s decision establishes that public employees are more at risk for expressing dissent.”
Predictably, Wessel disagrees with those assessments. He said he never viewed the case as presenting a large First Amendment issue. “I always characterized the speech at issue in this case as petty bickering,” he says.
“I think the Supreme Court majority took a common-sense approach to this type of situation,” he says. “If you look at the tone of the questionnaire, it was nearly 100 percent internal.”
“The primary precedent from the case is that not everything said in the public arena by public employees gets the protection of the First Amendment,” he says.
But Wessel, who practices employment law and usually represents employees, says that “the First Amendment is not imperiled in the area of public employment.”
Ironically, it was Wessel who first interviewed Myers when she joined the district attorney’s office. However, he left to private practice before the controversy. “Sheila was an excellent prosecutor,” he says.
Reflections by litigants
Connick, who has been district attorney for 27 years, still is puzzled over how the facts of the case gave rise to a First Amendment Supreme Court decision.
“We should have won in the district court,” he says. “We never should have gone to the U.S. Supreme Court.
“If that case got to the Supreme Court, then any case involving a public employee could get to the Supreme Court,” Connick said. “At oral arguments, I was thinking, ‘What in the hell are we doing in the Supreme Court?’ This case had to do with an assistant D.A. refusing to be transferred for the good of the office. All of this free-speech foolishness was nonsense.”
Connick insists that Myers was not fired for the questionnaire but for refusing the transfer. “We got into this First Amendment issue, but that was totally unrelated,” Connick said. “An employer should be able to fire an employee who fails to follow orders, plain and simple.”
Myers, however, sees the case as a free-speech loss for public employees. She also disagrees with Wessel’s assessment of her speech. “The speech goes from creating a ‘mini-insurrection’ to ‘petty bickering,’ ” she says. “Who knows what label will be placed on it next.
“I think public employees were disserved by this decision,” she said. “I didn’t draft the questionnaire with the thought that it would be risky to my employment. I thought it was at least implicitly authorized by Judge Waldron.” (Dennis Waldron is now a criminal court judge.)
Both Connick and Myers agree with the Supreme Court that speech about employees being pressured to work in political campaigns is a matter of public concern. They just disagree on whether it occurred in Connick’s office.
“That is an issue of grave public concern and is absolutely improper,” Connick said. “I can tell you that that has never happened in my office.”
Myers says she was disappointed with her firing and by the Supreme Court’s decision. “I was probably more upset at being fired, particularly because I was the first person from my family to become an attorney,” she says.
However, Myers holds no bitterness over the actions of Connick and Waldron.
“It is kind of ironic that we are all still around,” Myers said. “When I see them, I speak and they speak. I think there is a level of mutual respect. I did what I thought was right, and I think they did what they thought was right at the time.
“I do believe that a positive outcome for me from the case is that people believe me when I say that I’m going to do something,” said Myers, who is doing a large amount of death-penalty litigation these days. “I think people believe that I will stand up for what I believe in.”
For his part, Connick says that his office had better respect the rights of Myers as a criminal defense attorney. “She has a duty to represent her clients, and my attorneys must respect that duty. I don’t believe most of the attorneys in my office even know that this incident happened,” he said.
Myers’ biggest regret, though, is that the case bearing her name is a bad one for public employees. “It bothers me that it is cited as the case against public employees.”
Future of public employee free speech
The Supreme Court’s decision in Connick v. Myers has been applied in different ways by the lower courts. For example, the lower courts are divided on what constitutes a matter of public concern.
“This area of the law is very confused in the lower courts right now,” Goldstein says. “It is confused in no small part because of the very different factual situations that can arise and because of the very flexible standard from Connick v. Myers.”
O’Neil, the founder of the Thomas Jefferson Center for the Protection of Free Expression, agrees that “clarity is lacking in the court’s opinion. Since the decision we have had continuous confusion about what speech is a matter of public concern.”
“This is a messy area of First Amendment jurisprudence,” Goldstein says. “I expect that the conflicts in the lower courts will give rise to another Supreme Court case.”
Connick agrees with the First Amendment experts that the Supreme Court case is “confusing.” “The decision is confusing,” he said. “I don’t know how this case became a big First Amendment case. The main reason this employee was fired was for failing to follow an order.”
Myers hopes the high court will review this area of First Amendment law. “I hope to live to see it overturned,” she says.