Borough of Duryea v. Guarnieri (09-1476)

argument 09-1476

Borough of Duryea v. Guarnieri

Supreme Court of the United States 58 min 4 speakers 8 chapters transcribed 6 days ago official recording ↗

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What constitutional issue does the Borough of Duryea raise about the Petition Clause?

John G. Roberts 0:03

We'll hear argument first this morning in case zero nine fourteen seventy six, the borough of Duryo versus Guarnieri. Mr. Ortiz.

Unknown 0:11

Mr Chief Justice, it may it please the Court, in asking this Court to cabin Connick versus Meyer's public concern requirement, respondent would constitutionalise under the Petition Clause large parts of the law of public employee discipline and thereby grant to public employees a broad constitutional employment right that private employees do not enjoy. Two independent reasons, however, argue strongly for applying the public concern requirement to discipline claims brought both under the free speech and the petition clauses. First, the constitutional framework principles this Court has repeatedly identified in its public employment cases argue strongly for requiring it. And second, Macdonald versus Smith's principle of parity argues strongly for creating no hierarchy between the free speech and petition clauses.

Unknown 1:00

When you you agree that the petition clause is is different. And does have a separate content. Uh Your Honor, we agreed that the petition clause that when the petition clause and the uh the free speech clause cover the same activity. They applied under they cover it under McDonald in the same way. But the speech clause in the employment context has been interpreted to cover the content. Whether it whether it applies or not depends upon the content, right? Uh one part of that inquiry turns on the content. And you want the petition clause also to turn on the content? Uh part of the inquiry, yes, Your Honor, should uh turn on the content. But it seems to me you are either petitioning the government or you're not petitioning the government.

Unknown 1:53

Uh Why why shouldn't the line be uh If you're petitioning The government has employer. is different from petitioning the government as uh as ruler. Why shouldn't that be the line that we draw? Well the uh Which wouldn't necessarily uh uh break out the same way as whether it's a matter of private concern versus a matter of public concern. Your Honor, this c uh this court under the constitutional background principles this Court has developed, this Court should uh look at looks at how close to the core a particular example of employee activity uh is, and then talks about how much of a burden that kind of activity poses to the efficient operation work. core the core of of the uh petition clause is petitioning.

Unknown 2:50

The claw the the core of the free speech clause is political speech, of course, speech of public interest. But the the core of the petition clause is quite different. It's it's simply whether you're petitioning. Surely you you you could petition the gu most of the petitions in the early years were Regarding private matters, isn't that right? That is right, Your Honor, just as most examples of speech concern private matters too, yet that does not define the core, the Free Speech Clause. That is not an empirical inquiry. That depends upon the purpose of the clause. And as this court stated very definitely in McDonald. The core the petition clause, like the Free Speech Clause, was uh was aimed at promoting democratic self governments.

Unknown 3:37

Petitioning is a particular form of speech. It is speech directed to a particular audience, the government, some arm of government, some individual in government, and it is speech that has a particular purpose, asking for a change of some sort in government policy. That's true. And and it seems to me uh the the core is involved whenever you're asking for a change. And it seems to me that uh The the key distinction if there is one is whether you're asking for a change in by your employer in your employment conditions or a change by the government in some matters over which the government has control as as sovereign. Well, Your Honor, in practice that inquiry would not align much differently than the conic inquiry.

Unknown 4:27

May would be. And in this particular uh case uh designing a kind of threshold inquiry along those lines uh would actually advantage uh petitioners. One difficulty in application though is that this court has always identified the purpose of the conic threshold test as categorical categoricalizing in a way the pickering, balancing inquiry.