OPINION OF THE COURT BOROUGH OF DURYEA V. GUARNIERI 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-1476 BOROUGH OF DURYEA, PENNSYLVANIA, et al.,
PETITIONERS v. CHARLES J. GUARNIERI

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

															[June 20, 2011]

															   Justice Kennedy delivered the
opinion of the court.

															   Among other rights essential to
freedom, the First Amendment protects “the right of the people … to
petition the Government for a redress of grievances.” U. S. Const.,
Amdt. 1. This case concerns the extent of the protection, if any,
that the Petition Clause grants public employees in routine
disputes with government employers. Petitions are a form of
expression, and employees who invoke the Petition Clause in most
cases could invoke as well the Speech Clause of the First
Amendment. To show that an employer interfered with rights under
the Speech Clause, the employee, as a general rule, must show that
his speech was on a matter of public concern, as that term is
defined in the precedents of this and other courts. Here the issue
is whether that test applies when the employee invokes the Petition
Clause.

															   Alone among the Courts of Appeals to have
addressed the issue, the Court of Appeals for the Third Circuit has
held that the public concern test does not limit Petition Clause
claims by public employees. For the reasons stated below, this
conclusion is incorrect.

															I

															   Charles Guarnieri filed a union
grievance challenging his termination as chief of police for the
borough of Duryea, a town of about 4,600 persons in northeastern
Pennsylvania. His grievance proceeded to arbitration pursuant to
the police union collective-bargaining agreement. The arbitrator
found that the borough council, Duryea’s legislative body and the
entity responsible for Guarnieri’s termination, committed
procedural errors in connection with the termination; and the
arbitrator also found that Guarnieri engaged in misconduct,
including “attempting to intimidate Council members.” App. 37, 38.
The arbitrator ordered Guarnieri reinstated after a disciplinary
suspension. Id. , at 38.

															   Upon Guarnieri’s return to the
job, the council issued 11 directives instructing Guarnieri in the
performance of his duties. The council’s attorney explained that
the council “wanted to be sure that the chief understood what was
going to be expected of him upon his return.” Tr. 19:12–14 (Apr.
16, 2008). One directive prohibited Guarnieri from working overtime
without the council’s “express permission.” App. 59, ¶1. Another
indicated that “[t]he police car is to be used for official
business only.” Id. , at 60, ¶9. A third stated that the
“Duryea municipal building is a smoke free building” and that the
“police department is not exempt.” Id. , at 61, ¶10.
Guarnieri testified that, because of these and other directives,
his “coming back wasn’t a warm welcome feeling.” Tr. 65:7–8 (Apr.
15, 2008). Guarnieri filed a second union grievance challenging the
directives. The arbitrator instructed the council to modify or
withdraw some of the directives on the grounds that they were
vague, interfered with the authority of the mayor, or were contrary
to the collective-bargaining agreement.

															   Guarnieri filed this lawsuit against the
borough, the borough council, and individual members of the council
under 42 U. S. C. §1983. Guarnieri claimed that his first
union grievance was a petition protected by the Petition Clause of
the First Amendment, and he alleged that the directives issued upon
his reinstatement were retaliation for that protected activity.

															   After this suit was filed, the council denied
a request by Guarnieri for $338 in overtime. The United States
Department of Labor investigated and concluded that Guarnieri was
entitled to be paid. The council offered Guarnieri a check for the
amount, but Guarnieri refused to accept it. Instead, Guarnieri
amended his complaint to encompass the denial of overtime.
Guarnieri alleged that his §1983 lawsuit was a petition and that
the denial of overtime constituted retaliation for his having filed
the lawsuit.

															   Under the law of the Circuit, the defendants
could not obtain judgment as a matter of law on the basis that the
lawsuit and grievances were not on a matter of public concern. The
case proceeded to a jury. Guarnieri’s attorney argued that the
council was “sending a message to” Guarnieri through the directives
and the denial of overtime: “You might have won your arbitration,
but we control you.” Tr. 53:24–25 (Apr. 17, 2008). The District
Court instructed the jury that the lawsuit and union grievances
were “protected activity … under the constitution,” and that the
jury could find defendants liable if it found an adequate
connection between the protected activity and the alleged
retaliation. Id. , at 61:17–20; 62. The jury found in favor
of Guarnieri. The jury awarded $45,000 in compensatory damages and
$24,000 in punitive damages for the directives, as well as $358 in
compensatory damages and $28,000 in punitive damages for the denial
of overtime. The District Court awarded $45,000 in attorney’s fees
and denied defendants’ renewed motion for judgment as a matter of
law.

															   Defendants appealed on the ground that
Guarnieri’s grievances and lawsuit did not address matters of
public concern. Courts outside the Third Circuit have held that
allegedly retaliatory actions by government employers against
government employees may not give rise to liability under the
Petition Clause unless the employee’s petition related to a matter
of public concern. See, e.g., Kirby v. Elizabeth City , 388 F. 3d 440, 448–449 (CA4 2004); Tang v. Rhode Island, Dept. of Elderly Affairs ,
163 F. 3d 7, 11–12 (CA1 1998); White Plains Towing
Corp. v. Patterson , 991 F. 2d 1049, 1059 (CA2
1993). These courts rely on a substantial overlap between the
rights of speech and petition to justify the application of Speech
Clause pre-cedents to Petition Clause claims. They reason that,
whether the grievance is considered under the Speech Clause or the
Petition Clause, the government employer is entitled to take
adverse action against the employee unless the dispute involves a
matter of public concern.

															   Rejecting that view, the Court of Appeals here
affirmed the award of compensatory damages, although it found
insufficient evidence to sustain the award of punitive damages. The
Court of Appeals concluded that “ ‘a public employee who has
petitioned the government through a formal mechanism such as the
filing of a lawsuit or grievance is protected under the Petition
Clause from retaliation for that activity, even if the petition
concerns a matter of solely private concern.’ ” 364 Fed. Appx.
749, 753 (CA3 2010) (quoting Foraker v. Chaffinch , 501 F. 3d 231, 236 (CA3 2007)). The
decision of the Court of Appeals was consistent with the rule
adopted and explained by that court in San Filippo v. Bongiovanni , 30 F. 3d 424, 442 (1994). This Court
granted certiorari to resolve the conflict in the Courts of
Appeals. 562 U. S. ___ (2010).

															II

															   When a public employee sues a
government employer under the First Amendment’s Speech Clause, the
employee must show that he or she spoke as a citizen on a matter of
public concern. Connick v. Myers , 461 U. S. 138 , 147
(1983). If an employee does not speak as a citizen, or does not
address a matter of public concern, “a federal court is not the
appropriate forum in which to review the wisdom of a personnel
decision taken by a public agency allegedly in reaction to the
employee’s behavior.” Ibid. Even if an employee does speak
as a citizen on a matter of public concern, the employee’s speech
is not automatically privileged. Courts balance the First Amendment
interest of the employee against “the interest of the State, as an
employer, in promoting the efficiency of the public services it
performs through its employees.” Pickering v. Board of
Ed. of Township High School Dist. 205, Will Cty. , 391 U. S. 563 , 568
(1968).

															   This framework “reconcile[s] the
employee’s right to engage in speech and the government employer’s
right to protect its own legitimate interests in performing its
mission.” San Diego v. Roe , 543 U. S. 77 , 82 (2004) (per curiam) . There are some rights and freedoms so
fundamental to liberty that they cannot be bargained away in a
contract for public employment. “Our responsibility is to ensure
that citizens are not deprived of [these] fundamental rights by
virtue of working for the government.” Connick, supra , at
147; see also Keyishian v. Board of Regents of Univ.
of State of N. Y. , 385 U. S. 589 , 605–606
(1967). Nevertheless, a citizen who accepts public employment “must
accept certain limitations on his or her freedom.” Garcetti v. Ceballos , 547 U. S. 410 , 418
(2006). The government has a substantial interest in ensuring that
all of its operations are efficient and effective. That interest
may require broad authority to supervise the conduct of public
employees. “When 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.” Waters v. Churchill , 511 U. S. 661 , 675
(1994) (plurality opinion). Restraints are justified by the
consensual nature of the employment relationship and by the unique
nature of the government’s interest.

															   This case arises under the Petition Clause,
not the Speech Clause. The parties litigated the case on the
premise that Guarnieri’s grievances and lawsuit are petitions
protected by the Petition Clause. This Court’s precedents confirm
that the Petition Clause protects the right of in-dividuals to
appeal to courts and other forums estab- lished by the government
for resolution of legal disputes. “[T]he right of access to courts
for redress of wrongs is an aspect of the First Amendment right to
petition the government.” Sure-Tan, Inc. v. NLRB , 467 U. S. 883 ,
896–897 (1984); see also BE&K Constr. Co. v. NLRB , 536
U. S. 516 , 525 (2002); Bill Johnson’s Restaurants,
Inc. v. NLRB , 461 U. S. 731 , 741
(1983); California Motor Transport Co. v. Trucking
Unlimited , 404
U. S. 508 , 513 (1972). Although retaliation by a government
employer for a public employee’s exercise of the right of access to
the courts may implicate the protections of the Petition Clause,
this case provides no necessity to consider the correct application
of the Petition Clause beyond that context.

															   Although this case proceeds under the Petition
Clause, Guarnieri just as easily could have alleged that his
employer retaliated against him for the speech contained within his
grievances and lawsuit. That claim would have been subject to the
public concern test already described. Because Guarnieri chose to
proceed under the Petition Clause, however, the Court of Appeals
applied a more generous rule. Following the decision of the Court
of Appeals in San Filippo, supra , at 443, Guarnieri was
deemed entitled to protection from retaliation so long as his
petition was not a “sham.” Under that rule, defendants and other
public employers might be liable under the Petition Clause even if
the same conduct would not give rise to liability under the Speech
Clause. The question presented by this case is whether the history
and purpose of the Petition Clause justify the imposition of
broader liability when an employee invokes its protection instead
of the protection afforded by the Speech Clause.

															   It is not necessary to say that the two
Clauses are identical in their mandate or their purpose and effect
to acknowledge that the rights of speech and petition share
substantial common ground. This Court has said that the right to
speak and the right to petition are “cognate rights.” Thomas v. Collins , 323 U. S. 516 , 530
(1945); see also Wayte v. United States , 470 U. S. 598 , 610,
n. 11 (1985). “It was not by accident or coincidence that the
rights to freedom in speech and press were coupled in a single
guaranty with the rights of the people peaceably to assemble and to
petition for redress of grievances.” Thomas , 323 U. S., at
530. Both speech and petition are integral to the democratic
process, although not necessarily in the same way. The right to
petition allows citizens to express their ideas, hopes, and
concerns to their government and their elected representatives,
whereas the right to speak fosters the public exchange of ideas
that is integral to deliberative democracy as well as to the whole
realm of ideas and human affairs. Beyond the political sphere, both
speech and petition advance personal expression, although the right
to petition is generally concerned with expression directed to the
government seeking redress of a grievance.

															   Courts should not presume there is always an
essential equivalence in the two Clauses or that Speech Clause
precedents necessarily and in every case resolve Petition Clause
claims. See ibid. (rights of speech and petition are “not
identical”). Interpretation of the Petition Clause must be guided
by the objectives and aspirations that underlie the right. A
petition conveys the special concerns of its author to the
government and, in its usual form, re-quests action by the
government to address those concerns. See Sure-Tan Inc.,
supra , at 896–897.

															   This Court’s opinion in McDonald v. Smith , 472
U. S. 479 (1985), has sometimes been interpreted to mean that
the right to petition can extend no further than the right to
speak; but McDonald held only that speech contained within
a petition is subject to the same standards for defamation and
libel as speech outside a petition. In those circumstances the
Court found “no sound basis for granting greater constitutional
protection to statements made in a petition … than other First
Amendment expressions.” Id. , at 485. There may arise cases
where the special concerns of the Petition Clause would provide a
sound basis for a distinct analysis; and if that is so, the rules
and principles that define the two rights might differ in emphasis
and formulation.

															   As other Courts of Appeals have recognized,
however, claims of retaliation by public employees do not call for
this divergence. See supra , at 4. The close connection
between these rights has led Courts of Appeals other than the Third
Circuit to apply the public concern test developed in Speech Clause
cases to Petition Clause claims by public employees. As will be
explained further, this approach is justified by the extensive
common ground in the definition and delineation of these rights.
The considerations that shape the application of the Speech Clause
to public employees apply with equal force to claims by those
employees under the Petition Clause.

															   The substantial government interests that
justify a cautious and restrained approach to the protection of
speech by public employees are just as relevant when public
employees proceed under the Petition Clause. Petitions, no less
than speech, can interfere with the efficient and effective
operation of government. A petition may seek to achieve results
that “contravene governmental policies or impair the proper
performance of governmental functions.” Garcetti , 547 U.
S., at 419. Government must have authority, in appropriate
circumstances, to restrain employees who use petitions to frustrate
progress towards the ends they have been hired to achieve. A
petition, like other forms of speech, can bring the “mission of the
employer and the professionalism of its officers into serious
disrepute.” Roe , 543 U. S., at 81. A public employee
might, for instance, use the courts to pursue personal vendettas or
to harass members of the general public. That behavior could cause
a serious breakdown in public confidence in the government and its
employees. And if speech or petition were directed at or concerned
other public employees, it could have a serious and detrimental
effect on morale.

															   When a petition takes the form of a lawsuit
against the government employer, it may be particularly disruptive.
Unlike speech of other sorts, a lawsuit demands a response.
Mounting a defense to even frivolous claims may consume the time
and resources of the government employer. Outside the context of
public employment, this Court has recognized that the Petition
Clause does not protect “objectively baseless” litigation that
seeks to “ ‘interfere directly with the business
relationships of a competitor.’ ” Professional Real Estate
Investors, Inc. v. Columbia Pictures Industries,
Inc. , 508 U. S.
49 , 60–61 (1993) (quoting Eastern Railroad Presidents
Conference v. Noerr Motor Freight, Inc. , 365 U. S. 127 , 144
(1961)). In recognition of the substantial costs imposed by
litigation, Congress has also required civil rights plaintiffs
whose suits are “frivolous, unreasonable, or without foundation” to
pay attorney’s fees incurred by defendants. Christiansburg
Garment Co. v. EEOC , 434 U. S. 412 , 421
(1978); see also Fed. Rule Civ. Proc. 11 (providing sanctions
for claims that are “presented for [an] improper purpose,”
frivolous, or lacking evidentiary support). The government likewise
has a significant interest in disciplining public employees who
abuse the judicial process.

															   Unrestrained application of the Petition
Clause in the con- text of government employment would subject a
wide range of government operations to invasive judicial
superintendence. Employees may file grievances on a variety of
employment matters, including working conditions, pay, discipline,
promotions, leave, vacations, and terminations. See Brief for
National School Boards Association as Amicus Curiae 5.
Every government action in response could present a potential
federal constitutional issue. Judges and juries, asked to determine
whether the government’s actions were in fact retaliatory, would be
required to give scrutiny to both the government’s response to the
grievance and the government’s justification for its actions. This
would occasion review of a host of collateral matters typically
left to the discretion of public officials. Budget priorities,
personnel decisions, and substantive policies might all be laid
before the jury. This would raise serious federalism and
separation-of-powers concerns. It would also consume the time and
attention of public officials, burden the exercise of legitimate
authority, and blur the lines of accountability between officials
and the public.

															   This case illustrates these risks and costs.
Guarnieri’s attorney invited the jury to review myriad details of
government decisionmaking. She questioned the council’s decision to
issue directives in writing, rather than orally, Tr. 66 (Apr. 14,
2008); the council’s failure to consult the mayor before issuing
the directives, id. , at 105 (Apr. 15, 2008); the amount of
money spent to employ “Philadelphia lawyers” to defend Guarnieri’s
legal challenges, id. , at 191–193:7–10 (Apr. 14, 2008);
152–153 (Apr. 16, 2008); and the wisdom of the council’s decision
to spend money to install Global Positioning System devices on
police cars, id. , at 161–162 (same). Finally, the attorney
invited the jury to evaluate the council’s decisions in light of an
emotional appeal on behalf of Guarnieri’s “little dog Hercules,
little white fluffy dog and half Shitsu.” Id. , at 49:13–14
(Apr. 14, 2008). It is precisely to avoid this intrusion into
internal governmental affairs that this Court has held that, “while
the First Amendment invests public employees with certain rights,
it does not empower them to ‘constitutionalize the employee
grievance.’ ” Garcetti, supra , at 420 (quoting Connick , 461 U. S., at 154).

															   If the Petition Clause were to apply even
where matters of public concern are not involved, that would be
unnecessary, or even disruptive, when there is already protection
for the rights of public employees to file grievances and to
litigate. The government can and often does adopt statutory and
regulatory mechanisms to protect the rights of employees against
improper retaliation or discipline, while preserving important
government interests. Cf. Garcetti , supra , at 425
(noting a “powerful network of legislative enactments”). Employees
who sue under federal and state employment laws often benefit from
generous and quite detailed antiretaliation provisions. See, e.g., Pa. Stat. Ann., Tit. 43, §1101.1201(a)(4) (Purdon
2009); §1101.1302. These statutory protections are subject to
legislative revision and can be designed for the unique needs of
State, local, or Federal Governments, as well as the special
circumstances of particular governmental offices and agencies. The
Petition Clause is not an instrument for public employees to
circumvent these legislative enactments when pursuing claims based
on ordinary workplace grievances.

															   In light of the government’s interests in the
public employment context, it would be surprising if Petition
Clause claims by public employees were not limited as necessary to
protect the employer’s functions and responsibilities. Even beyond
the Speech Clause, this Court has explained that “government has
significantly greater leeway in its dealings with citizen employees
than it does when it brings its sovereign power to bear on citizens
at large.” Engquist v. Oregon Dept. of
Agriculture , 553 U. S. 591 , 599
(2008); see also NASA v. Nelson , 562 U. S.
___ , ___ (2011) (slip op., at 12). The government’s interest
in managing its internal affairs requires proper restraints on the
invocation of rights by employees when the workplace or the
government employer’s responsibilities may be af-fected. There is
no reason to think the Petition Clause should be an exception.

															   The public concern test was developed to
protect these substantial government interests. Adoption of a
different rule for Petition Clause claims would provide a ready
means for public employees to circumvent the test’s protections.
Consider Sheila Myers, who was the original plaintiff in Connick . She circulated “a questionnaire soliciting the
views of her fellow staff members” on various office matters. 461
U. S., at 141. The Court held that Myers’ claim for retaliation
failed the public concern test because the questionnaire was “most
accurately characterized as an employee grievance concerning
internal office policy.” Id. , at 154. It would undermine
that principle if a different result would have obtained had Myers
raised those same claims using a formal grievance procedure. Myers’
employer “reasonably believed [Myers’ complaints] would disrupt the
office, undermine his authority, and destroy close working
relationships.” Ibid . These concerns would be no less
significant in the context of a formal grievance. Employees should
not be able to evade the rule articulated in the Connick case by wrapping their speech in the mantle of the Petition
Clause.

															   Articulation of a separate test for the
Petition Clause would aggravate potential harm to the government’s
interests by compounding the costs of compliance with the
Constitution. A different rule for each First Amendment claim would
require employers to separate petitions from other speech in order
to afford them different treatment; and that, in turn, would add to
the complexity and expense of compliance with the Constitution.
Identifying peti-tions might be easy when employees employ formal
grievance procedures, but the right to petition is not limited to
petitions lodged under formal procedures. See, e.g., Brown v. Louisiana , 383 U. S. 131 (1966).
Indeed, the employee in Connick could have made a
colorable argument that her questionnaire ought to be viewed as a
petition for redress of grievances.

															   Guarnieri claims application of the public
concern test to the Petition Clause would be inappropriate in light
of the private nature of many petitions for redress of grievances.
The Petition Clause undoubtedly does have force and application in
the context of a personal grievance addressed to the government.
See, e.g., Trainmen v. Virginia ex rel.
Virginia State Bar , 377 U. S. 1 (1964); Thomas , 323 U. S., at 530–531. At the founding, citizens
petitioned on a wide range of subjects, including matters of both
private and public concern. Petitions to the colonial legislatures
concerned topics as diverse as debt actions, estate distributions,
divorce proceedings, and requests for modification of a criminal
sentence. Higginson, A Short History of the Right to Petition
Government for the Redress of Grievances, 96 Yale L. J. 142,
146 (1986). Although some claims will be of interest only to the
individual making the appeal, for that individual the need for a
legal remedy may be a vital imperative. See, e.g. , M. L. B. v. S. L. J ., 519 U. S. 102 (1996); Boddie v. Connecticut , 401 U. S. 371 (1971).
Outside the public employment context, constitutional protection
for petitions does not necessarily turn on whether those petitions
relate to a matter of public concern.

															   There is, however, no merit to the suggestion
that the public concern test cannot apply under the Petition Clause
because the majority of petitions to colonial legislatures
addressed matters of purely private concern. In analogous cases
under the Speech Clause, this Court has noted the “Constitution’s
special concern with threats to the right of citizens to
participate in political affairs,” Connick, supra , at 145,
even though it is likely that, in this and any other age, most
speech concerns purely private matters. The proper scope and
application of the Petition Clause likewise cannot be determined
merely by tallying up petitions to the colonial legislatures. Some
effort must be made to identify the historic and fundamental
principles that led to the enumeration of the right to petition in
the First Amendment, among other rights fundamental to liberty.

															   Petitions to the government assume an added
dimension when they seek to advance political, social, or other
ideas of interest to the community as a whole. Petition, as a word,
a concept, and an essential safeguard of freedom, is of ancient
significance in the English law and the Anglo-American legal
tradition. See, e.g., 1 W. Blackstone, Commentaries *143.
The right to petition applied to peti-tions from nobles to the
King, from Parliament to the King, and from the people to the
Parliament, and it concerned both discrete, personal injuries and
great matters of state.

															   The right to petition traces its origins to
Magna Carta, which confirmed the right of barons to petition the
King. W. McKechnie, Magna Carta: A Commentary on the Great
Charter of King John 467 (rev. 2d ed. 1958). The Magna Carta itself
was King John’s answer to a petition from the barons. Id. ,
at 30–38. Later, the Petition of Right of 1628 drew upon centuries
of tradition and Magna Carta as a model for the Parliament to issue
a plea, or even a demand, that the Crown refrain from certain
actions. 3 Car. 1, ch. 1 (1627). The Petition of Right stated four
principal grievances: taxation without consent of Parliament;
arbitrary imprisonment; quartering or billeting of soldiers; and
the imposition of martial law. After its passage by both Houses of
Parliament, the Petition received the King’s assent and became part
of the law of England. See S. Gardiner, The First Two Stuarts and
the Puritan Revolution, 1603–1660, pp. 60–61 (1886). The Petition
of Right occupies a place in English constitutional history
superseded in importance, perhaps, only by Magna Carta itself and
the Declaration of Right of 1689.

															   The following years saw use of mass petitions
to address matters of public concern. See 8 D. Hume, History of
England from the Invasion of Julius Caesar to the Revolution in
1688, p. 122 (1763) (“Tumultuous petitioning … was an admirable
expedient … for spreading discontent, and for uniting the nation in
any popular clamour”). In 1680, for instance, more than 15,000
persons signed a petition regarding the summoning and dissolution
of Par-liament, “one of the major political issues agitating the
nation.” Knights, London’s ‘Monster’ Petition, 36 Historical
Journal 39, 40–43 (1993). Nine years later, the Declaration of
Right listed the illegal acts of the sovereign and set forth
certain rights of the King’s subjects, one of which was the right
to petition the sovereign. It stated that “it is the Right of the
Subjects to petition the King, and all Commitments and Prosecutions
for such Petitioning are Illegal.” 1 W. & M., ch. 2; see also
L. Schwoerer, The Declaration of Rights, 1689, pp. 69–71
(1981).

															   The Declaration of Independence of 1776 arose
in the same tradition. After listing other specific grievances and
wrongs, it complained, “In every stage of these Oppressions We have
Petitioned for Redress in the most humble terms: Our repeated
Petitions have been answered only by repeated injury.” The
Declaration of Independence ¶30.

															   After independence, petitions on matters of
public concern continued to be an essential part of contemporary
debates in this country’s early history. Two years before the
adoption of the Constitution, James Madison’s Memorial and
Remonstrance against Religious Assessments, an important document
in the history of the Establishment Clause, was presented to the
General Assembly of the Com-monwealth of Virginia as a petition.
See 1 D. Lay- cock, Religious Liberty: Overviews and History
90 (2010); Arizona Christian School Tuition Organization v. Winn , 563 U. S. ___ , ___ (2011) (slip op., at
12–13). It attracted over 1,000 signatures. Laycock, supra , at 90, n. 153. During the ratification
debates, Antifederalists circulated petitions urging delegates not
to adopt the Constitution absent modification by a bill of rights.
Boyd, Antifederalists and the Acceptance of the Constitution:
Pennsylvania, 1787–1792, 9 Publius, No. 2, pp. 123, 128–133 (Spring
1979).

															   Petitions to the National Legislature also
played a central part in the legislative debate on the subject of
slavery in the years before the Civil War. See W. Miller, Arguing
About Slavery (1995). Petitions allowed participation in democratic
governance even by groups excluded from the franchise. See Mark,
The Vestigial Constitution: The History and Significance of the
Right to Petition, 66 Ford. L. Rev. 2153, 2182 (1998). For
instance, petitions by women seeking the vote had a role in the
early woman’s suffrage movement. See Cogan & Ginzberg, 1846
Petition for Woman’s Suffrage, New York State Constitutional
Convention, 22 Signs 427, 437–438 (1997). The right to petition is
in some sense the source of other fundamental rights, for petitions
have provided a vital means for citizens to request recognition of
new rights and to assert existing rights against the sovereign.

															   Petitions to the courts and similar bodies can
likewise address matters of great public import. In the context of
the civil rights movement, litigation provided a means for “the
distinctive contribution of a minority group to the ideas and
beliefs of our society.” NAACP v. Button , 371 U. S. 415 ,
431 (1963). Individuals may also “engag[e] in litigation as a
vehicle for effective political expression and association, as well
as a means of communicating useful information to the public.” In re Primus , 436 U. S. 412 , 431
(1978). Litigation on matters of public concern may facilitate the
informed public participation that is a cornerstone of democratic
society. It also allows individuals to pursue desired ends by
direct appeal to government officials charged with applying the
law.

															   The government may not misuse its role as
employer unduly to distort this deliberative process. See Garcetti , 547 U. S., at 419. Public employees are “the
members of a community most likely to have informed and definite
opinions” about a wide range of matters related, directly or
indirectly, to their employment. Pickering , 391 U. S., at
572. Just as the public has a right to hear the views of public
employees, the public has a right to the benefit of those
employees’ participation in petitioning activity. Petitions may
“allow the public airing of disputed facts” and “promote the
evolution of the law by supporting the development of legal
theories,” NLRB , 536 U. S., at 532 (internal quotation
marks omitted), and these and other benefits may not accrue if one
class of knowledgeable and motivated citizens is prevented from
engaging in petitioning activity. When a public employee seeks to
participate, as a citizen, in the process of deliberative
democracy, either through speech or petition, “it is necessary to
regard the [employee] as the member of the general public he seeks
to be.” Pickering, supra , at 574.

															   The framework used to govern Speech Clause
claims by public employees, when applied to the Petition Clause,
will protect both the interests of the government and the First
Amendment right. If a public employee petitions as an employee on a
matter of purely private concern, the employee’s First Amendment
interest must give way, as it does in speech cases. Roe ,
543 U. S., at 82–83. When a public employee petitions as a citizen
on a matter of public concern, the employee’s First Amendment
interest must be balanced against the countervailing interest of
the government in the effective and efficient management of its
internal affairs. Pickering, supra , at 568. If that
balance favors the public employee, the employee’s First Amendment
claim will be sustained. If the interference with the government’s
operations is such that the balance favors the employer, the
employee’s First Amendment claim will fail even though the petition
is on a matter of public concern.

															   As under the Speech Clause, whether an
employee’s petition relates to a matter of public concern will
depend on “the content, form, and context of [the petition], as
revealed by the whole record.” Connick , 461 U. S., at
147–148, and n. 7. The forum in which a petition is lodged
will be relevant to the determination of whether the petition
relates to a matter of public concern. See Snyder v. Phelps , 562 U. S. ___ , ___ (2011) (slip op., at
8–9). A petition filed with an employer using an internal grievance
procedure in many cases will not seek to communicate to the public
or to advance a political or social point of view beyond the
employment context.

															   Of course in one sense the public may always
be interested in how government officers are performing their
duties. But as the Connick and Pickering test has
evolved, that will not always suffice to show a matter of public
concern. A petition that “involves nothing more than a complaint
about a change in the employee’s own duties” does not relate to a
matter of public concern and accordingly “may give rise to
discipline without imposing any special burden of justification on
the government employer.” United States v. Treasury
Employees , 513
U. S. 454 , 466 (1995). The right of a public employee under the
Petition Clause is a right to participate as a citizen, through
petitioning activity, in the democratic process. It is not a right
to transform everyday employment disputes into matters for
constitutional litigation in the federal courts.

															III

															   Because the Third Circuit did not
find it necessary to apply this framework, there has been no
determination as to how it would apply in the context of this case.
The parties did not address the issue in the opening brief or the
response, and the United States did not address the issue in its
brief as amicus curiae . In their reply brief, petitioners
suggest that this Court should address the issue and resolve it in
their favor. Yet in their opening brief petitioners sought only
vacatur and remand. This Court need not consider this issue without
the benefit of full briefs by the parties.

															   The judgment of the Court of
Appeals is vacated, and the case is remanded for further
proceedings consistent with this opinion.

															It is so ordered. THOMAS, J., CONCURRING IN JUDGMENT BOROUGH OF DURYEA V. GUARNIERI 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-1476 BOROUGH OF DURYEA, PENNSYLVANIA, et al.,
PETITIONERS v. CHARLES J. GUARNIERI

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

															[June 20, 2011]

															   Justice Thomas, concurring in the
judgment.

															   For the reasons set forth by
Justice Scalia, I seriously doubt that lawsuits are “petitions”
within the original meaning of the Petition Clause of the First
Amendment. See post , at 2–3 (opinion concurring in
judgment in part and dissenting in part). Unreasoned statements to
the contrary in this Court’s prior decisions do not convince me
otherwise. Like the Court, however, I need not decide that question
today because “[t]he parties litigated the case on the premise that
Guarnieri’s grievances and lawsuit are petitions protected by the
Petition Clause.” Ante , at 6.

															   I also largely agree with Justice Scalia about
the framework for assessing public employees’ retaliation claims
under the Petition Clause. The “public concern” doctrine of Connick v. Myers , 461 U. S. 138 (1983), is
rooted in the First Amendment’s core protection of speech on
matters of public concern and has no relation to the right to
petition. See post , at 3–7. I would not import that test
into the Petition Clause. Rather, like Justice Scalia, I would hold
that “the Petition Clause protects public employees against
retaliation for filing petitions unless those petitions are
addressed to the government in its capacity as the petitioners’
employer, rather than its ca-pacity as their sovereign.” Post , at 7.

															   But I would not end the analysis after
determining that a petition was addressed to the government as
sovereign. Recognizing “the realities of the employment context,”
we have held that “government has significantly greater lee-way in
its dealings with citizen employees than it does when it brings its
sovereign power to bear on citizens at large.” Engquist v. Oregon Dept. of Agriculture , 553 U. S. 591 , 600, 599
(2008). Even where a public employee petitions the government in
its capacity as sovereign, I would balance the employee’s right to
petition the sovereign against the government’s interest as an
employer in the ef- fective and efficient management of its
internal affairs. Cf. Garcetti v. Ceballos , 547 U. S. 410 ,
419 (2006) (noting that employees “speaking as citizens about
matters of pub-lic concern” still must “face … speech restrictions
that are necessary for their employers to operate efficiently and
effectively”); United States v. Treasury
Employees , 513
U. S. 454 , 492 (1995) (Rehnquist, C. J., dissenting) (“In
conducting this balance [in the Speech Clause context], we
consistently have given substantial weight to government employers’
reasonable predictions of disruption, even when the speech involved
was on a matter of public concern”); O’Connor v. Ortega , 480
U. S. 709 , 721–722 (1987) (plurality opinion) (balancing the
“the realities of the workplace” against the “legitimate privacy
interests of public employees” to conclude that a warrant
requirement would “seriously disrupt the routine conduct of
business” and “be unduly burdensome”). In assessing a retaliation
claim under the Petition Clause, courts should be able to conclude
that, in instances when the petition is especially disruptive, as
some lawsuits might be, the balance of interests may weigh in favor
of the government employer.

															   Applying this framework, I would vacate the
judgment and remand. The Court of Appeals erred with respect to
both Guarnieri’s union grievance and his 42 U. S. C. §1983
suit. First, even assuming the grievance was a petition, it was
addressed to the local government in its capacity as Guarnieri’s
employer. See post , at 8 (opinion of Scalia, J.). Second,
Guarnieri addressed his §1983 suit to the Federal Government in its
capacity as sovereign, not to the local government as his employer.
See ibid. But the Court of Appeals did not consider
whether the local government’s interest as an employer “in
achieving its goals as effectively and efficiently as possible”
nevertheless outweighs Guarnieri’s interest in petitioning the
Federal Government regarding his local employment. Engquist , supra , at 598 (internal quotation marks
omitted). I would vacate and remand for the Court of Appeals to
conduct that analysis in the first instance. OPINION OF SCALIA, J. BOROUGH OF DURYEA V. GUARNIERI 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-1476 BOROUGH OF DURYEA, PENNSYLVANIA, et al.,
PETITIONERS v. CHARLES J. GUARNIERI

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

															[June 20, 2011]

															   Justice Scalia, concurring in the
judgment in part and dissenting in part.

															   I disagree with two aspects of
the Court’s reasoning. First, the Court is incorrect to state that
our “precedents confirm that the Petition Clause protects the right
of individuals to appeal to courts and other forums established by
the government for resolution of legal disputes.” Ante , at
6. Our first opinion clearly saying that lawsuits are “Petitions”
under the Petition Clause came less than 40 years ago. In California Motor Transport Co. v. Trucking
Unlimited , 404
U. S. 508 (1972),[ Footnote
1 ] an opinion by Justice Douglas, the Court asserted that
“[t]he right of access to the courts is indeed but one aspect of
the right of petition.” Id., at 510. As authority it cited
two habeas corpus cases, Johnson v. Avery , 393 U. S. 483 (1969), and Ex parte Hull , 312 U. S. 546 (1941),
neither of which even mentioned the Petition Clause. The assertion,
moreover, was pure dictum. The holding of California Motor
Transport was that the Noerr-Pennington doctrine, a
judicial gloss on the Sherman Act that had been held to immunize
certain lobbying (legislature-petitioning) activity, did not apply to sham litigation that “sought to bar …
competitors from meaningful access to adjudicatory tribunals,” 404
U. S., at 510–512. The three other cases cited by the Court as
holding that lawsuits are petitions, ante , at 6, are all
statutory interpretation decisions construing the National Labor
Relations Act, albeit against the backdrop of the Petition Clause.
See BE&K Constr. Co. v. NLRB , 536 U. S. 516 , 534–536
(2002); Sure-Tan, Inc. v. NLRB , 467 U. S. 883 , 896–897
(1984) Bill Johnson’s Restaurants, Inc. v. NLRB , 461 U. S. 731 ,
741–743 (1983). The Court has never actually held that a
lawsuit is a constitutionally protected “Petition,” nor does
today’s opinion hold that. The Court merely observes that “[t]he
parties litigated the case on the premise that Guarnieri’s
grievances and lawsuit are petitions protected by the Petition
Clause,” ante , at 6, and concludes that Guarnieri’s 42 U.
S. C. §1983 claim would fail even if that premise were
correct.

															   I find the proposition that a lawsuit is a
constitutionally protected “Petition” quite doubtful. The First
Amendment’s Petition Clause states that “Congress shall make no law
… abridging … the right of the people … to petition the Government
for a redress of grievances.” The reference to “the right of the
people” indicates that the Petition Clause was intended to codify a
pre-existing individual right, which means that we must look to
historical practice to determine its scope. See District of
Columbia v. Heller , 554 U. S. 570 , 579, 592
(2008).

															   There is abundant historical evidence that
“Petitions” were directed to the executive and legislative branches
of government, not to the courts. In 1765, the Stamp Act Congress
stated “[t]hat it is the right of the British subjects in these
colonies to petition the King or either House of Parliament.”
Declaration of Rights and Grievances, Art. 13, reprinted in 1 B.
Schwartz, The Bill of Rights: A Documentary History 195, 198
(1971); it made no mention of petitions directed to the courts. As
of 1781, seven state constitutions protected citizens’ right to
apply or petition for redress of grievances; all seven referred
only to legislative petitions. See Andrews, A Right of Access to
Court Under the Petition Clause of the First Amendment: De-fining
the Right, 60 Ohio St. L. J. 557, 604–605, n. 159 (1999). The
Judiciary Act of 1789 did not grant federal trial courts
jurisdiction to hear lawsuits arising under federal law; there is
no indication anyone ever thought that this restriction infringed
on the right of citizens to petition the Federal Government for
redress of grievances. The fact that the Court never affirmed a
First Amendment right to litigate until its unsupported dictum in
1972—after having heard almost 200 years’ worth of lawsuits, untold
numbers of which might have been affected by a First Amendment
right to litigate—should give rise to a strong suspicion that no
such right exists. “[A] universal and long-established tradition of
prohibiting certain conduct creates a strong presumption that the
prohibition is constitutional: Principles of liberty fundamental
enough to have been embodied within constitutional guarantees are
not readily erased from the Nation’s consciousness.” Nevada
Comm’n on Ethics v. Carrigan , ante , at 4
(internal quotation marks omitted).

															   I acknowledge, however, that scholars have
made detailed historical arguments to the contrary. See, e.g. , Andrews, supra , at 595–625; Pfander,
Sovereign Immunity and the Right to Petition: Toward a First
Amendment Right to Pursue Judicial Claims Against the Government,
91 Nw. U. L. Rev. 899, 903–962 (1997). As the Court’s opinion
observes, the parties have not litigated the issue, and so I agree
we should leave its resolution to another day.

															   Second, and of greater practical consequence,
I disagree with the Court’s decision to apply the “public concern”
framework of Connick v. Myers , 461 U. S. 138 (1983), to
retaliation claims brought under the Petition Clause. The Court
correctly holds that the Speech Clause and Petition Clause are not
co-extensive, ante , at 7–8. It acknowledges, moreover,
that the Petition Clause protects personal grievances addressed to
the government, ante , at 13. But that is an
understatement—rather like acknowledging that the Speech Clause
protects verbal expression. “[T]he primary responsibility of
colonial assemblies was the settlement of private disputes raised
by petitions.” Higginson, A Short History of the Right to Petition
Government for the Redress of Grievances, 96 Yale L. J. 142,
145 (1986). “[T]he overwhelming majority of First Congress
petitions presented private claims.” 8 Documentary History of the
First Federal Congress 1789–1791, p. xviii (K. Bowling, W.
DiGiacomantonio, & C. Bickford eds. 1998). The Court
nonetheless holds that, at least in public employment cases, the
Petition Clause and Speech Clause should be treated identically, so
that since the Speech Clause does not prohibit retaliation against
public employees for speaking on matters of private concern,
neither does the Petition Clause. The Court gives two reasons for
this: First, “[a] different rule for each First Amendment claim
would … add to the complexity and expense of compliance with the
Constitution” and “would provide a ready means for public employees
to circumvent the test’s protections,” and second, “[p]etitions to
the government … assume an added dimension when they seek to
advance political, social, or other ideas of interest to the
community as a whole.” Ante , at 12–14.

															   Neither reason is persuasive. As to the
former: The complexity of treating the Petition Clause and Speech
Clause separately is attributable to the inconsiderate disregard
for judicial convenience displayed by those who ratified a First
Amendment that included both provisions as separate constitutional rights. A plaintiff does not
engage in pernicious “circumvention” of our Speech Clause
precedents when he brings a claim premised on a separate enumerated
right to which those precedents are inapplicable.

															   As to the latter: Perhaps petitions on matters
of public concern do in some sense involve an “added dimension,”
but that “added dimension” does not obliterate what has
traditionally been the principal dimension of the Petition Clause.
The public-concern limitation makes sense in the context of the
Speech Clause, because it is speech on matters of public concern
that lies “within the core of First Amendment protection.” Engquist v. Oregon Dept. of Agri-culture , 553 U. S. 591 ,
600 (2008). The Speech Clause “has its fullest and most urgent
application to speech uttered during a campaign for political
office.” Citizens United v. Federal Election
Comm’n , 558 U. S. ___, ___ (2010) (slip op., at 23) (internal
quotation marks omitted). The unique protection granted to
political speech is grounded in the history of the Speech Clause,
which “was fashioned to assure unfettered interchange of ideas for
the bringing about of political and social changes desired by the
people.” Connick , supra , at 145 (internal
quotation marks omitted).

															   But the mere fact that we have a longstanding
tradition of granting heightened protection to speech of
public concern does not suggest that a “public concern” requirement
should be written into other constitutional provisions. We would
not say that religious proselytizing is entitled to more protection
under the Free Exercise Clause than private religious worship
because public proclamations are “core free exercise activity.” Nor
would we say that the due process right to a neutral adjudicator is
heightened in the context of litigation of national importance
because such litigation is somehow at the “core of the due process
guarantee.” Likewise, given that petitions to redress private grievances were such a high proportion of
petitions at the founding—a proportion that is infinitely higher if
lawsuits are considered to be petitions—it is ahistorical to say
that petitions on matters of public concern constitute “core
petitioning activity.” In the Court’s view, if Guar-nieri had
submitted a letter to one of the borough of Duryea’s council
members protesting a tax assessment that he claimed was mistaken;
and if the borough had fired him in retaliation for that petition;
Guarnieri would have no claim for a Petition Clause violation. That
has to be wrong. It takes no account of, and thus frustrates, the
principal purpose of the Petition Clause.

															   The Court responds that “[t]he proper scope
and application of the Petition Clause . . . cannot be determined
merely by tallying up petitions to the colonial legislatures,” ante , at 14, but that misses the point. The text of the
Petition Clause does not distinguish petitions of public concern
from petitions of private concern. Accordingly, there should be no
doctrinal distinction between them unless the history or tradition
of the Petition Clause justifies it. The mere fact that the Court
can enumerate several historical petitions of public importance, ante , at 14–16, does not establish such a tradition, given
that peti-tions for redress of private grievances vastly
outnumbered them. Indeed, the Court’s holding is contrary to this
Court’s historical treatment of the Petition Clause, assuming (as
the Court believes) that the Clause embraces litigation: We have
decided innumerable cases establishing constitutional rights with
respect to litigation, and until today not a one of them has so
much as hinted that litigation of public concern enjoys more of
those rights than litigation of private concern. The Court’s belief
in the social importance of public petitions, and its reminiscences
of some of the public-petition greats of yesteryear, ibid. , do not justify the proclamation of special
constitutional rights for public petitions. It is the Constitution
that establishes constitutional rights, not the Justices’ notions
of what is important, or the top numbers on their Petition Hit
Parade. And there is no basis for believing that the Petition
Clause gives special protection to public petitions.

															   Rather than shoehorning the “public concern”
doctrine into a Clause where it does not fit, we should hold that
the Petition Clause protects public employees against re-taliation
for filing petitions unless those petitions are ad-dressed to the
government in its capacity as the petitioners’ employer, rather
than its capacity as their sovereign. As the Court states, we have
long held that “government has significantly greater leeway in its
dealings with citizen employees than it does when it brings its
sovereign power to bear on citizens at large.” Ante , at
11–12 (quoting Engquist , supra , at 599; internal
quotation marks omitted). To apply to the Petition Clause context
what we have said regarding the Speech Clause: When an employee
files a petition with the government in its capacity as his
employer, he is not acting “as [a] citize[n] for First Amendment
purposes,” because “there is no relevant analogue to [petitions] by
citizens who are not government employees.” Garcetti v. Ceballos , 547 U. S. 410 , 421,
423–424 (2006). To be sure, the line between a petition addressed
to government as the petitioner’s employer and one addressed to it
as sovereign is not always clear, but it is no more fuzzy than the
line between matters of private and matters of public
concern.[ Footnote 2 ] The
criterion I suggest would largely resolve the legitimate practical
concerns identified by the Court, ante , at 10–12, while
recognizing and giving effect to the difference between the Speech
and Petition Clauses.

															   Under what I think to be the proper test, the
Third Circuit judgment before us here should be reversed in part
and affirmed in part. The portion of it upholding Guarnieri’s claim
of retaliation for having filed his union grievance must be
reversed. A union grievance is the epitome of a petition addressed
to the government in its capacity as the petitioner’s employer. No
analogous petitions to the government could have been filed by
private citizens, who are not even permitted to avail themselves of
Guarnieri’s union grievance procedure. Contrariwise, the portion of
the judgment upholding Guarnieri’s claim of retaliation for having
filed his §1983 claim must be affirmed. Given that Guarnieri was
not an employee of the Federal Government, it is impossible to say
that the §1983 claim was addressed to government in its capacity as
his employer. I think it clear that retaliating against a state
employee for writing a letter to his Congressman about his state
job would run afoul of the Petition Clause. Assuming that the §1983
lawsuit should be treated like a letter to a Congressman for
Petition Clause purposes—a proposition which, I again emphasize, is
doubtful, but which the parties do not dispute in this
case—retaliation for having filed his lawsuit also violates the
Clause. Footnote 1 Respondent would agree, since he cited this
case in argument as the earliest. Tr. of Oral Arg. 36. There were,
however, three cases in the 1960’s which adverted vaguely to
lawsuits as involving the right to petition. See Mine
Workers v. Illinois Bar Assn. , 389 U. S. 217 , 222–224
(1967); Trainmen v. Virginia ex rel. Virginia State
Bar , 377 U. S.
1 , 7 (1964); NAACP v. Button , 371 U. S. 415 , 430
(1963). Footnote 2 Compare, e.g., Alpha Energy
Savers, Inc. v. Hansen , 381 F. 3d 917, 927 (CA9
2004) (testimony concerning claim of employment discrimination by
government contractor constituted matter of public concern because
“[l]itigation seeking to expose … wrongful governmental activity
is, by its very nature, a matter of public concern”), with Padilla v. South Harrison R-II School Dist. , 181
F. 3d 992, 997 (CA8 1999) (teacher’s testimony approving
sexual relationship between teacher and minor was matter of private
concern because it “does not relate to the teacher’s legitimate
disagreement with a school board’s policies”). And compare, e.g. , Voigt v. Savell , 70 F. 3d
1552, 1560 (CA9 1995) (speech regarding how judge handled two
internal personnel matters was matter of public concern because
“[t]he public has an interest in knowing whether the court treats
its job applicants fairly”), with Maggio v. Sipple , 211 F. 3d 1346, 1353 (CA11 2000) (testimony
at hearing concerning employee grievance was matter of private
concern because it did “not allege … fraud or corruption in
[defendant’s] implementation of its personnel policies and appeal
procedures”).


NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.

															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 14–1280

															_________________

															JEFFREY J. HEFFERNAN, PETITIONER v. CITY OF PATERSON, NEW JERSEY, et al.

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

															[April 26, 2016]

															Justice Breyer delivered the opinion of the
Court.

															The First Amendment generally prohibits
government officials from dismissing or demoting an employee
because of the employee’s engagement in constitutionally protected
political activity. See Elrod v. Burns , 427
U. S. 347 (1976) ; Branti v. Finkel , 445
U. S. 507 (1980) ; but cf. Civil Service Comm’n v. Letter Carriers , 413 U. S. 548, 564 (1973) . In this
case a government official demoted an employee because the official
believed, but incorrectly believed, that the employee had
supported a particular candidate for mayor. The question is whether
the official’s factual mistake makes a critical legal difference.
Even though the employee had not in fact engaged in protected
political activity, did his demotion “deprive” him of a “right
. . . secured by the Constitution”? 42 U. S. C.
§1983. We hold that it did.

															I

															To decide the legal question presented, we
assume the following, somewhat simplified, version of the facts: In
2005, Jeffrey Heffernan, the petitioner, was a police officer in
Paterson, New Jersey. He worked in the office of the Chief of
Police, James Wittig. At that time, the mayor of Paterson, Jose
Torres, was running for reelection against Lawrence Spagnola.
Torres had appointed to their current positions both Chief Wittig
and a subordinate who directly supervised Heffernan. Heffernan was
a good friend of Spagnola’s.

															During the campaign, Heffernan’s mother, who was
bedridden, asked Heffernan to drive downtown and pick up a large
Spagnola sign. She wanted to replace a smaller Spagnola sign, which
had been stolen from her front yard. Heffernan went to a Spagnola
distribution point and picked up the sign. While there, he spoke
for a time to Spagnola’s campaign manager and staff. Other members
of the police force saw him, sign in hand, talking to campaign
workers. Word quickly spread throughout the force.

															The next day, Heffernan’s supervisors demoted
Heffernan from detective to patrol officer and assigned him to a
“walking post.” In this way they punished Heffernan for what they
thought was his “overt involvement” in Spag-nola’s campaign. In
fact, Heffernan was not involved in the campaign but had picked up
the sign simply to help his mother. Heffernan’s supervisors had
made a factual mistake.

															Heffernan subsequently filed this lawsuit in
federal court. He claimed that Chief Wittig and the other
respondents had demoted him because he had engaged in conduct that
(on their mistaken view of the facts) constituted protected speech.
They had thereby “depriv[ed]” him of a “right . . .
secured by the Constitution.” Rev. Stat. §1979, 42
U. S. C. §1983.

															The District Court found that Heffernan had not
engaged in any “ First Amendment conduct,” 2 F. Supp. 3d 563,
580 (NJ 2014); and, for that reason, the respondents had not
deprived him of any constitutionally protected right. The Court of
Appeals for the Third Circuit affirmed. It wrote that “a
free-speech retaliation claim is actionable under §1983 only where
the adverse action at issue was prompted by an employee’s actual , rather than perceived , exercise of
constitutional rights.” 777 F. 3d 147, 153 (2015) (citing Ambrose v. Robinson , 303 F. 3d 488, 496 (CA3
2002); emphasis added). Heffernan filed a petition for certiorari.
We agreed to decide whether the Third Circuit’s legal view was
correct. Compare 777 F. 3d, at 153 (case below), with Dye v. Office of Racing Comm’n , 702 F. 3d 286,
300 (CA6 2012) (similar factual mistake does not affect the
validity of the government employee’s claim).

															II

															With a few exceptions, the Constitution
prohibits a government employer from discharging or demoting an
employee because the employee supports a particular political
candidate. See Elrod v. Burns , supra ; Branti v. Finkel , supra . The basic
constitutional requirement reflects the First Amendment’s hostility
to government action that “prescribe[s] what shall be orthodox in
politics.” West Virginia Bd. of Ed . v. Barnette , 319
U. S. 624, 642 (1943) . The exceptions take account of
“practical realities” such as the need for “efficiency” and
“effective[ness]” in government service. Waters v. Churchill , 511 U. S. 661, 672, 675 (1994) ; see also Civil Service Comm’n , supra , at 564 (neutral and
appropriately limited policy may prohibit government employees from
engaging in partisan activity), and Branti , supra , at
518 (political affiliation requirement permissible where
affiliation is “an appropriate requirement for effective
performance of the public office involved”).

															In order to answer the question presented, we
assume that the exceptions do not apply here. But see infra ,
at 8 . We assume that the activities that Heffernan’s
supervisors thought he had engaged in are of a kind that
they cannot constitutionally prohibit or punish, see Rutan v. Republican Party of Ill. , 497 U. S. 62, 69 (1990)
(“joining, working for or contributing to the political party and
candidates of their own choice”), but that the supervisors were
mistaken about the facts. Heffernan had not engaged in those
protected activities. Does Heffernan’s constitutional case
consequently fail?

															The text of the relevant statute does not answer
the question. The statute authorizes a lawsuit by a person
“depriv[ed]” of a “right . . . secured by the
Constitution.” 42 U. S. C. §1983. But in this context,
what precisely is that “right?” Is it a right that primarily
focuses upon (the employee’s) actual activity or a right that
primarily fo-cuses upon (the supervisor’s) motive, insofar as that
motive turns on what the supervisor believes that activity to be?
The text does not say.

															Neither does precedent directly answer the
question. In some cases we have used language that suggests the
“right” at issue concerns the employee’s actual activity. In Connick v. Myers , 461 U. S. 138 (1983) , for
example, we said that a court should first determine whether the
plaintiff spoke “ ‘as a citizen’ ” on a “ ‘matter[]
of public concern,’ ” id., at 143. We added that, if
the employee has not engaged in what can “be fairly characterized
as constituting speech on a matter of public concern, it is
unnecessary for us to scrutinize the reasons for her discharge.” Id., at 146. We made somewhat similar statements in Garcetti v. Ceballos , 547 U. S. 410, 418 (2006)
, and Pickering v. Board of Ed. of Township High School
Dist. 205, Will Cty. , 391 U. S. 563 (1968) .

															These cases, however, did not present the kind
of question at issue here. In Connick , for example, no
factual mistake was at issue. The Court assumed that both the
employer and the employee were at every stage in agreement about
the underlying facts: that the employer dismissed the employee
because of her having circulated within the office a document that
criticized how the office was being run (that she had in fact
circulated). The question was whether the circulation of that
document amounted to constitutionally protected speech. If not, the
Court need go no further.

															Neither was any factual mistake at issue in Pickering. The Court assumed that both the employer (a
school board) and the employee understood the cause for dismissal,
namely, a petition that the employee had indeed circulated
criticizing his employer’s practices. The question concerned
whether the petition was protectedspeech. Garcetti is
substantially similar. In each of these cases, the only way to show
that the employer’s motive was unconstitutional was to prove that
the controver-sial statement or activity—in each case the
undisputed reason for the firing—was in fact protected by the First
Amendment. Waters v. Churchill , 511
U. S. 661 (1994) , is more to the point. In that case the
Court did consider the consequences of an employer mistake. The
employer wrongly, though reasonably, believed that the employee had
spoken only on personal matters not of public concern, and the
employer dismissed the employee for having engaged in that
unprotected speech. The employee, however, had in fact used words
that did not amount to personal “gossip” (as the employer believed)
but which focused on matters of public concern. The Court asked
whether, and how, the employer’s factual mistake mattered.

															The Court held that, as long as the employer (1)
had reasonably believed that the employee’s conversation had
involved personal matters, not matters of public concern, and (2)
had dismissed the employee because of that mistaken belief, the
dismissal did not violate the First Amendment. Id., at
679–680. In a word, it was the employer’s motive, and in particular
the facts as the employer reasonably understood them, that
mattered.

															In Waters , the employer reasonably but
mistakenly thought that the employee had not engaged in
protected speech. Here the employer mistakenly thought that the
employee had engaged in protected speech. If the employer’s
motive (and in particular the facts as the employer reasonably
understood them) is what mattered in Waters, why is the same
not true here? After all, in the law, what is sauce for the goose
is normally sauce for the gander.

															We conclude that, as in Waters , the
government’s reason for demoting Heffernan is what counts here.
When an employer demotes an employee out of a desire to prevent the
employee from engaging in political activity that the First
Amendment protects, the employee is entitled to challenge that
unlawful action under the First Amendment and 42 U. S. C.
§1983—even if, as here, the employer makes a factual mistake about
the employee’s behavior.

															We note that a rule of law finding liability in
these circumstances tracks the language of the First Amend-ment
more closely than would a contrary rule. Unlike, say, the Fourth
Amendment, which begins by speaking of the “right of the people to
be secure in their persons, houses, papers, and effects
. . . ,” the First Amendment beginsby focusing upon the
activity of the Government. It says that “Congress shall make no
law . . . abridging the freedom of speech.” The
Government acted upon a constitutionally harmful policy whether
Heffernan did or did not in fact engage in political activity. That
which stands for a “law” of “Congress,” namely, the police
department’s reason for taking action, “abridge[s] the freedom of
speech” of employees aware of the policy. And Heffernan was
di-rectly harmed, namely, demoted, through application of that
policy.

															We also consider relevant the constitutional
implications of a rule that imposes liability. The constitutional
harm at issue in the ordinary case consists in large part of
discouraging employees—both the employee discharged (or demoted)
and his or her colleagues—from engaging in protected activities.
The discharge of one tells the others that they engage in protected
activity at their peril. See, e.g ., Elrod , 427
U. S., at 359 (retaliatory employment action against one
employee “unquestionably inhibits protected belief and association”
of all employees). Hence, we do not require plaintiffs in political
affiliation cases to “prove that they, or other employees, have
been coerced into changing, either actually or ostensibly, their
political allegiance.” Branti , 445 U. S., at 517. The
employer’s factual mistake does not diminish the risk of causing
precisely that same harm. Neither, for that matter, is that harm
diminished where an employer announces a policy of demoting those
who, say, help a particular candidate in the mayoral race, and all
employees (including Heffernan), fearful of demotion, refrain from
providing any such help. Cf. Gooding v. Wilson , 405
U. S. 518, 521 (1972) (explaining that overbreadth doctrine is
necessary “because persons whose expression is constitutionally
protected may well refrain from exercising their rights for fear of
criminal sanctions”). The upshot is that a discharge or demotion
based upon an employer’s belief that the employee has engaged in
protected activity can cause the same kind, and degree, of
constitutional harm whether that belief does or does not rest upon
a factual mistake.

															Finally, we note that, contrary to respondents’
asser-tions, a rule of law that imposes liability despite the
employer’s factual mistake will not normally impose significant
extra costs upon the employer. To win, the employee must prove an
improper employer motive. In a case like this one, the employee
will, if anything, find it more difficult to prove that motive, for
the employee will have to point to more than his own conduct to
show an employer’s intent to discharge or to demote him for
engaging in what the employer (mistakenly) believes to have been
different (and protected) activities. We concede that, for that
very reason, it may be more complicated and costly for the employee
to prove his case. But an employee bringing suit will ordinarily
shoulder that more complicated burden voluntarily in order to
recover the damages he seeks.

															III

															We now relax an assumption underlying our
decision. We have assumed that the policy that Heffernan’s
employers implemented violated the Constitution. Supra, at
3. There is some evidence in the record, however, suggesting that
Heffernan’s employers may have dismissed him pursuant to a
different and neutral policy prohibiting police officers from overt
involvement in any political campaign. See Brief for United States
as Amicus Curiae 27–28. Whether that policy existed, whether
Heffernan’s supervisors were indeed following it, and whether it
complies with constitutional standards, see Civil Service
Comm’n , 413 U. S., at 564, are all matters for the lower
courts to decide in the first instance. Without expressing views on
the matter, we reverse the judgment of the Third Circuit and remand
the case for such further proceedings consistent with this
opinion.

															It is so ordered. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 14–1280

															_________________

															JEFFREY J. HEFFERNAN, PETITIONER v. CITY OF PATERSON, NEW JERSEY, et al.

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

															[April 26, 2016]

															Justice Thomas, with whom Justice Alito joins,
dissenting.

															Today the Court holds that a public employee may
bring a federal lawsuit for money damages alleging a violation of a
constitutional right that he concedes he did not exercise. Ante, at 1. Because federal law does not provide a cause of
action to plaintiffs whose constitutional rights have not been
violated, I respectfully dissent.

															I

															This lawsuit concerns a decision by the city
of Paterson, New Jersey (hereinafter City), to demote one of its
police officers, Jeffrey Heffernan. At the time of Heffernan’s
demotion, Paterson’s mayor, Jose Torres, was running for reelection
against one of Heffernan’s friends, Lawrence Spagnola. The police
chief demoted Heffernan after another officer assigned to Mayor
Torres’ security detail witnessed Heffernan pick up a Spagnola
campaign sign when Heffernan was off duty. Heffernan claimed that
he picked up the sign solely as an errand for his bedridden mother.
Heffernan denied supporting or associating with Spagnola’s campaign
and disclaimed any intent to communicate support for Spagnola by
retrieving the campaign sign. Despite Heffernan’s assurances that
he was not engaged in protected First Amendment activity, he filed
this lawsuit alleging that his employer violated his First
Amendment rights by demoting him based on its mistaken belief that
Heffernan had communicated support for the Spagnola campaign.

															II

															Title 42 U. S. C. §1983 provides a
cause of action against “[e]very person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State
. . . subjects . . . any citizen of the United
States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution.” For
Heffernan to prevail on his §1983 claim, then, a state actor must
have deprived him of a constitutional right. Nothing in the text of
§1983 provides a remedy against public officials who attempt but
fail to violate someone’s constitutional rights.

															There are two ways to frame Heffernan’s First
Amendment claim, but neither can sustain his suit. As in most §1983
suits, his claim could be that the City interfered with his freedom
to speak and assemble. But because Heffernan has conceded that he
was not engaged in protected speech or assembly when he picked up
the sign, the majority must resort to a second, more novel framing.
It concludes that Heffernan states a §1983 claim because the City
unconstitutionally regulated employees’ political speech and
Heffernan was injured because that policy resulted in his demotion.
See ante, at 6. Under that theory, too, Heffernan’s §1983
claim fails. A city’s policy, even if unconstitutional, cannot be
the basis of a §1983 suit when that policy does not result in the
infringement of the plaintiff’s constitutional rights.

															A

															To state a claim for retaliation in violation
of the First Amendment, public employees like Heffernan must allege
that their employer interfered with their right to speak as a
citizen on a matter of public concern. Whether the employee engaged
in such speech is the threshold inquiry under the Court’s
precedents governing whether a public employer violated the First
Amendment rights of its employees. See Garcetti v. Ceballos , 547 U. S. 410, 418 (2006) . If the employee
has not spoken on a matter of public concern, “the employee has no
First Amendment cause of action based on his or her employer’s
reaction to the speech.” Ibid. If the employee did, however,
speak as a citizen on a matter of public concern, then the Court
looks to “whether the relevant government entity had an adequate
justification for treating the employee differently from any other
member of the general public.” Ibid. Under this framework, Heffernan’s claim fails at
the first step. He has denied that, by picking up the yard sign, he
“spoke as a citizen on a matter of public concern.” Ibid. In
fact, Heffernan denies speaking in support of or associating with
the Spagnola campaign. He has claimed that he picked up the yard
sign only as an errand for hisbedridden mother. Demoting a dutiful
son who aids his elderly, bedridden mother may be callous, but it
is not unconstitutional.

															To be sure, Heffernan could exercise his First
Amendment rights by choosing not to assemble with the
Spagnola campaign. Cf. Harper & Row, Publishers, Inc. v. Nation Enterprises , 471 U. S. 539, 559 (1985) (freedom
of expression “includes both the right to speak freely and the
right to refrain from speaking at all” (internal quotation marks
omitted)). But such an allegation could not save his claim here. A
retaliation claim requires proving that Heffernan’s protected
activity was a cause-in-fact of the retaliation. See University
of Tex. Southwestern Medical Center v. Nassar , 570
U. S. ___, ___ (2013) (slip op., at 23). And Heffernan’s
exercise of his right not to associate with the Spagnola campaign
did not cause his demotion. Rather, his perceived association with the Spagnola campaign did.

															At bottom, Heffernan claims that the City tried
to interfere with his constitutional rights and failed. But it is
not enough for the City to have attempted to infringe his First
Amendment rights. To prevail on his claim, he must establish that
the City actually did so. The City’s attempt never ripened
into an actual violation of Heffernan’s constitutional rights
because, unbeknownst to the City, Heffernan did not support
Spagnola’s campaign.

															Though, in criminal law, a factually impossible
attempt like the City’s actions here could constitute an
attempt,[ 1 ]* there is no such
doctrine in tort law. A plaintiff may maintain a suit only for a
completed tort; “[t]here are no attempted torts.” United
States v. Stefonek , 179 F. 3d 1030, 1036 (CA7 1999)
(internal quotation marks omitted); see also Sebok, Deterrence or
Disgorgement? Reading Ciraolo After Campbell , 64 Md.
L. Rev. 541, 565 (2005) (same). And “there can be no doubt
that claims brought pursuant to §1983 sound in tort.” Monterey v. Del Monte Dunes at Monterey, Ltd. , 526
U. S. 687, 709 (1999) . Because Heffernan could claim at most
that the City attempted to interfere with his First Amendment
rights, he cannot prevail on a claim under the theory that the City
infringed his right to speak freely or assemble.

															B

															To get around this problem of factual
impossibility, the majority reframes Heffernan’s case as one about
the City’s lack of power to act with unconstitutional motives. See ante, at 4. Under the majority’s view, the First Amendment
prohibits the City from taking an adverse employment action
intended to impede an employee’s rights to speak and assemble,
regardless of whether the City has accurately perceived an
employee’s political affiliation. The majority surmises that an
attempted violation of an employee’s First Amendment rights can be
just as harmful as a successful deprivation of First Amendment
rights. Ante, at 7. And the majority concludes that the
City’s demotion of Heffernan based on his wrongfully perceived
association with a political campaign is no differentfrom the
City’s demotion of Heffernan based on his actual association with a
political campaign. Ante , at 6.

															But §1983 does not provide a cause of action for
unauthorized government acts that do not infringe the
constitutional rights of the §1983 plaintiff. See Blessing v. Freestone , 520 U. S. 329, 340 (1997) (“In order to
seek redress through §1983, . . . a plaintiff must assert the
violation of a federal right , not merely a violation of
federal law ”). Of course the First Amendment “focus[es] upon
the activity of the Government.” Ante , at 6. See Amdt. 1
(“Congress shall make no law . . . ”). And here, the
“activity of Government” has caused Heffernan harm, namely, a
demotion. But harm alone is not enough; it has to be the right kind
of harm. Section 1983 provides a remedy only if the City has
violated Heffernan’s constitutional rights , not if it has
merely caused him harm. Restated in the language of tort law,
Heffernan’s injury must result from activities within the zone of
interests that §1983 protects. Cf. Lexmark Int’l, Inc. v. Static Control Components, Inc. , 572 U. S. ___, ___,
n. 5 (2014) (slip op., at 11, n. 5) (discussing the
zone-of-interests test in the context of negligence per se ).

															The mere fact that the government has acted
unconstitutionally does not necessarily result in the violation of
an individual’s constitutional rights, even when that individual
has been injured. Consider, for example, a law that authorized
police to stop motorists arbitrarily to check their licenses and
registration. That law would violate the Fourth Amendment. See Delaware v. Prouse , 440 U. S. 648, 661 (1979) .
And motorists who were not stopped might suffer an injury
from the unconstitutional policy; for example, they might face
significant traffic delays. But these motorists would not have a
§1983 claim simply because they were injured pursuant to an
unconstitutional policy. This is because they have not suffered the
right kind of injury. They must allege, instead, that their injury
amounted to a violation of their constitutional right against
unreasonable seizures—that is, by being unconstitutionally
detained.

															Here too, Heffernan must allege more than an
injury from an unconstitutional policy. He must establish that this
policy infringed his constitutional rights to speak freely and
peaceably assemble. Even if the majority is correct that demoting
Heffernan for a politically motivated reason was beyond the scope
of the City’s power, the City never invaded Heffernan ’s
right to speak or assemble. Accordingly, he is not entitled to
money damages under §1983 for the nonviolation of his First
Amendment rights.

															The majority tries to distinguish the Fourth
Amendment by emphasizing the textual differences between that
Amendment and the First. See ante, at 6 (“Unlike, say the
Fourth Amendment . . . , the First Amendment begins
by focusing upon the activity of the Government”). But these
textual differences are immaterial. All rights enumerated in the
Bill of Rights “focu[s] upon the activity of the Government” by
“tak[ing] certain policy choices off the table.” District of
Columbia v. Heller , 554 U. S. 570, 636 (2008) ; see
also Hohfeld, Some Fundamental Legal Conceptions As Applied in
Judicial Reasoning, 23 Yale L. J. 16, 30, 55–57 (1913)
(recognizing that an immunity implies a corresponding lack of
power). Fourth Amendment rights could be restated in terms of
governmental power with no change in substantive meaning. Thus, the
mere fact that the First Amendment begins “Congress shall make no
law” does not broaden a citizen’s ability to sue to vindicate his
freedoms of speech and assembly.

															To reach the opposite conclusion, the majority
relies only on Waters v. Churchill , 511 U. S.
661 (1994) (plurality opinion). See ante, at 5–7. But Waters does not support the majority’s expansion of §1983 to
cases where the employee did not exercise his First Amendment
rights. The issue in Waters was whether a public employer
violated the First Amendment where it reasonably believed that the
speech it proscribed was unprotected. The Court concluded that the
employer did not violate the First Amendment because it reasonably
believed the employee’s speech was unprotected: “We have never held
that it is a violation of the Constitution for a government
employer to discharge an employee based on substantively incorrect
information.” 511 U. S., at 679. And the Court reaffirmed
that, to state a First Amendment retaliation claim, the public
employee must allege that she spoke on a matter of public concern.
See id., at 681.

															Unlike the employee in Waters , Heffernan
admits that he was not engaged in constitutionally protected
activity. Accordingly, unlike in Waters, he cannot allege
that his employer interfered with conduct protected by the First
Amendment. “[W]hat is sauce for the goose” is not “sauce for the
gander,” ante , at 6, when the goose speaks and the gander
does not.

															*  *  *

															If the facts are as Heffernan has alleged, the
City’s demotion of him may be misguided or wrong. But, because
Heffernan concedes that he did not exercise his First Amendment
rights, he has no cause of action under §1983. I respectfully
dissent. Notes 1 * Factual impossibility
occurs when “an actor engages in conduct designed to culminate in
the commission of an offense that is impossible for him to
consummate under the existing circumstances.” 1 P. Robinson,
Criminal Law Defenses §85, p. 422 (1984). Canonical examples
include an attempt to steal from an empty pocket, State v. Wilson , 30 Conn. 500, 505 (1862), or an attempt to commit
false pretenses where the victim had no money, People v. Arberry , 13 Cal. App. 749, 757 (1910).