United States v. Treasury Employees, 513 U.S. 454, 32 (1995)

Page:   Index   Previous  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  Next

Cite as: 513 U. S. 454 (1995)

Opinion of O'Connor, J.

of its latitude. The bare assertion of interest in a wide-ranging prophylactic ban here, without any showing that Congress considered empirical or anecdotal data pertaining to abuses by lower echelon Executive Branch employees, cannot suffice to outweigh the substantial burden on the 1.7 million affected employees. I agree with the Court that § 501 is unconstitutional to the extent that it bars this class of employees from receiving honoraria for expressive activities that bear no nexus to Government employment.

II

The class before us is defined by pay scale, not by its members' propensity to write articles without nexus to Government employment. As to any member of the class, the honoraria ban may have unconstitutional applications. But the ban may be susceptible of constitutional application to every member of the class, as well. We do not decide the question—a far harder case for respondents, in my view— whether it is constitutional to apply the honoraria ban to speech by this class that bears a relationship to Government employment. I believe that the Court overlooks this nuance when it enjoins all enforcement of § 501 against the class, any one of whose members may, in the future, receive honoraria for work-related activities. I would give respondents relief tailored to what they request: invalidation of the statute insofar as it applies to honoraria they receive for speech without nexus to Government employment. See Brief for Respondents 45-46 (noting that respondents' central aim "could also be achieved by a remedy similar to the one urged by the government—by holding the ban invalid as applied to respondents' writing and speaking activities [that] have no nexus to their federal employment").

I agree with the Court's assertion that the remedy in this case is properly limited to the parties before us. We have long characterized overbreadth analysis as "strong medicine," to be "employed by the Court sparingly and only as a

485

Page:   Index   Previous  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  Next

Last modified: October 4, 2007