688
Scalia, J., concurring in judgment
protected speech, and risk of erroneous exculpation of unprotected speech," ibid.
The proposed right to an investigation before dismissal for speech not only expands the concept of "First Amendment procedure" into brand new areas, but brings it into disharmony with our cases involving government employment decided under the Due Process Clause. As Justice O'Connor acknowledges, see ante, at 678, those cases hold that public employees who, like Churchill, lack a protected property interest in their jobs, are not entitled to any sort of a hearing before dismissal. See, e. g., Board of Regents of State Colleges v. Roth, 408 U. S. 564, 577-578 (1972). Such employees can be dismissed with impunity (insofar as federal constitutional protections are concerned) for the reason, accurate or not, that they are incompetent, that they have been guilty of unexcused absences, that they have stolen money from the faculty honor bar—or indeed for no reason at all. But under Justice O'Connor's opinion, if a reason happens to be given, and if the reason relates to speech and "there is a substantial likelihood that what was actually said was protected," (whatever that means), ante, at 677, an investigation to assure that the speech was not the sort protected by the First Amendment must be conducted—after which, presumably, the dismissal can still proceed even if the speech was not what the employer had thought it was, so long as it was not speech on an issue of public importance. In the present case, for example, if the requisite "First Amendment investigation" disclosed that Nurse Churchill had not been demeaning her superiors, but had been complaining about the perennial end-of-season slump of the Chicago Cubs, her dismissal, erroneous as it was, would have been perfectly OK.
This is a strange jurisprudence indeed. And the reason it is strange is that Justice O'Connor has in effect converted the government employer's First Amendment liability with respect to "public concern" speech from liability for
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