Waters v. Churchill, 511 U.S. 661, 11 (1994)

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Cite as: 511 U. S. 661 (1994)

Opinion of O'Connor, J.

We have never set forth a general test to determine when a procedural safeguard is required by the First Amendment—just as we have never set forth a general test to determine what constitutes a compelling state interest, see Boos v. Barry, 485 U. S. 312, 324 (1988), or what categories of speech are so lacking in value that they fall outside the protection of the First Amendment, New York v. Ferber, 458 U. S. 747, 763-764 (1982), or many other matters—and we do not purport to do so now. But though we agree with Justice Scalia that the lack of such a test is inconvenient, see post, at 687-688, this does not relieve us of our responsibility to decide the case that is before us today. Both Justice Scalia and we agree that some procedural requirements are mandated by the First Amendment and some are not. See post, at 686. None of us have discovered a general principle to determine where the line is to be drawn. See post, at 686-688. We must therefore reconcile ourselves to answering the question on a case-by-case basis, at least until some workable general rule emerges.

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

B

We have never explicitly answered this question, though we have always assumed that its premise is correct—that the government as employer indeed has far broader powers than does the government as sovereign. See, e. g., Pickering, 391 U. S., at 568; Civil Service Comm'n v. Letter Carri-

671

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