Rankin v. McPherson/Concurrence Powell

JUSTICE POWELL, concurring.

It is not easy to understand how this case has assumed constitutional dimensions and reached the Supreme Court of the United States. The fact that the case is here, however, illustrates the uniqueness of our Constitution and our system of judicial review: courts at all levels are available and receptive to claims of injustice, large and small, by any and every citizen of this country.

As the Court notes, at the time this dispute arose, respondent McPherson was a 19-year-old probationary employee in the Constable's office in Harris County, Texas. Her only job was to type information from court papers into a computer. She had no law enforcement responsibility, nor was she permitted to perform the primary task of the Constable's office, serving civil process. While she was seated at her desk, the office radio announced the shocking news that someone had tried to assassinate the President. Reacting to the report, McPherson engaged in a brief conversation with her coworker, at the end of which she said: "[I]f they go for him again, I hope they get him." Tr. (Jan. 21, 1985), p. 73. This unfortunate remark was overheard by another [p393] employee, who relayed it to the Constable. McPherson immediately was summoned to the Constable's office, where she freely admitted having made the statement. Based on this single comment, McPherson was summarily discharged.

There is no dispute that McPherson's comment was made during a private conversation with a coworker who happened also to be her boyfriend. She had no intention or expectation that it would be overheard or acted on by others. Given this, I think it is unnecessary to engage in the extensive analysis normally required by Connick v. Myers, 461 U.S. 138 (1983), and Pickering v. Board of Education, 391 U.S. 563 (1968). If a statement is on a matter of public concern, as it was here, it will be an unusual case where the employer's legitimate interests will be so great as to justify punishing an employee for this type of private speech that routinely takes place at all levels in the workplace. The risk that a single, offhand comment directed to only one other worker will lower morale, disrupt the workforce, or otherwise undermine the mission of the office borders on the fanciful. To the extent that the full constitutional analysis of the competing interests is required, I generally agree with the Court's opinion. [p394]

In my view, however, the case is hardly as complex as might be expected in a dispute that now has been considered five separate times by three different federal courts. The undisputed evidence shows that McPherson made an ill-considered — but protected — comment during a private conversation, and the Constable made an instinctive, but intemperate, employment decision on the basis of this speech. I agree that, on these facts, McPherson's private speech is protected by the First Amendment.

I join the opinion of the Court.

Note
I recognize, and strongly agree, that a public employer, no less than his private-sector counterpart, must have authority to maintain the efficiency as well as the integrity of his office. As the Court notes, "‘the State, as an employer, [has an interest] in promoting the efficiency of the public services it performs through its employees.'" Ante at 384 (quoting Pickering v. Board of Education, 391 U.S. 563, 568 (1968), and Connick v. Myers, 461 U.S. 138, 140 (1983)). I do not read the Court's opinion as extending the Connich-/Pickering test, or otherwise making it more difficult for employers to discipline workers whose speech interferes with these goals. Cf. Arnett v. Kennedy, 416 U.S. 134, 168 (1974) (POWELL, J., concurring in part and concurring in result in part) ("[T]he Government's interest in being able to act expeditiously to remove an unsatisfactory employee is substantial") (footnote omitted). In this case, however, there is no objective evidence that McPherson's lone comment had any negative effect on the morale or efficiency of the Constable's office. See ante at 388-389.