686
Scalia, J., concurring in judgment
Memoirs of a Woman of Pleasure" v. Attorney General of Mass., 383 U. S. 413 (1966)).
Justice Scalia, with whom Justice Kennedy and Justice Thomas join, concurring in the judgment.
The central issue in this case is whether we shall adhere to our previously stated rule that a public employer's disciplining of an employee violates the Speech and Press Clause of the First Amendment only if it is in retaliation for the employee's speech on a matter of public concern. Justice O'Connor would add to this prohibition a requirement that the employer conduct an investigation before taking disciplinary action in certain circumstances. This recognition of a broad new First Amendment procedural right is in my view unprecedented, superfluous to the decision in the present case, unnecessary for protection of public-employee speech on matters of public concern, and unpredictable in its application and consequences.
I
I do not doubt that the First Amendment contains within it some procedural prescriptions—that in some circumstances, "the freedom of speech" recognized by the Constitution consisted of a right to speak unless and until certain procedures to prevent the speech had first been complied with. Thus, for example, I have no quarrel in principle with (though I have not inquired into the historical justification for) decisions such as Freedman v. Maryland, 380 U. S. 51 (1965), which established the administrative and judicial review provisions that a film licensing process must contain in order to avoid constituting an unconstitutional prior restraint, see Patterson v. Colorado ex rel. Attorney General of Colo., 205 U. S. 454, 462 (1907) (Holmes, J.).
We have, however, been most circumspect about acknowledging procedural components of the First Amendment. Almost all of the cases Justice O'Connor cites as exemplars are elaborations upon the limitation on defamation suits first
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