United States v. Treasury Employees, 513 U.S. 454 (1995)

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certiorari to the united states court of appeals for the district of columbia circuit

No. 93-1170. Argued November 8, 1994—Decided February 22, 1995

After 501(b) of the Ethics in Government Act of 1978 was amended to prohibit a Member of Congress, federal officer, or other Government employee from accepting an honorarium for making an appearance or speech or writing an article, respondents—including individual members of, and a union representing, a class composed of all Executive Branch employees below grade GS-16 who, but for 501(b), would receive honoraria—filed a suit challenging the statute as an unconstitutional abridgment of their freedom of speech. The speeches and articles for which respondents had received honoraria in the past concerned matters such as religion, history, dance, and the environment; with few exceptions, neither their subjects nor the persons or groups paying for them had any connection with respondents' official duties. In granting respondents' motion for summary judgment, the District Court held 501(b) unconstitutional insofar as it applies to Executive Branch employees and enjoined the Government from enforcing it against any such employee. The Court of Appeals affirmed, emphasizing, inter alia, that the Government's failure as to many respondents to identify some sort of nexus between the employee's job and either the expression's subject matter or the payor's character undercut its proffered concern about actual or apparent improprieties in the receipt of honoraria.

Held: Section 501(b) violates the First Amendment. Pp. 464-480. (a) The honoraria ban imposes the kind of burden that abridges speech under the First Amendment. Where, as here, Government employees seek to exercise their right as citizens to comment on matters of public interest, and are not attempting simply to speak as employees upon personal matters, the Government must be able to satisfy a balancing test of the type set forth in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568, in order to maintain a statutory restriction on the employees' speech. See Civil Service Comm'n v. Letter Carriers, 413 U. S. 548, 564. However, because 501(b) constitutes a wholesale deterrent to a broad category of expression by a massive number of potential speakers, the Government's burden here is even greater than it was in Pickering and its progeny, which

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