stating that because the government bears the affirmative burden of “justifying” actions stifling employee expression, the employee must prevail in the Pickering balancing “[g]iven the absence of any demonstrated harm”
How later courts described this case
- stating that because the government bears the affirmative burden of “justifying” actions stifling employee expression, the employee must prevail in the Pickering balancing “[g]iven the absence of any demonstrated harm”
- employee’s article in union newsletter opposing “right to work” laws
Written by the judges who cited it.
The opinion
RUTH BADER GINSBURG, Circuit Judge,
concurring:
I concur in Chief Judge Wald’s opinion and believe that the Dissent has not effectively presented “an objective standard upon which writers and speakers can rely.” See Dissent at 322 (emphasis added). The Dissent offers as the correct and reliable test: what meaning would “a reasonable reader” draw from the speaker’s or writer's words when he said or published them? See id. Is there a singular answer to that question, and if so, how does one reach it?
Joseph Gordon wrote these words in a column published in his local union’s newsletter:
[O]ne of the letters was not sealed and the contents fell out as I was sorting the mail. I could not help but seeing just what was inside____
To one “reasonable reader,” those words invite and encourage other postal workers engaged in sorting mail to read, disclose, and discuss the content of mail fearlessly— “with impunity.” See Dissent at 315, 318, 321. Another reasonable mind regarded Gordon’s words as “harmless fiction” — the “stock-in-trade” of the political speaker. See Majority Opinion at 299 (quoting from district court’s opinion, which found Gordon’s words not designed for literal consumption).
Under the Dissent’s standard, who are the relevant “reasonable readers”? Are they the large public unlikely even to see the local union’s newsletter, or are they the postal workers to whom the newsletter is circulated? The latter are firmly instructed by Postal Service regulation not to open or read mail. Would they nonetheless understand from the column that long-term employee Gordon had taken to advocating “invasion of] the privacy of the public mails” for personal satisfaction? See Dissent at 315.
The divergent opinions in this case demonstrate why the Dissent’s standard does not appear to me altogether “objective”: the same words may indeed be “reasonably understood,” see Dissent at 324, by reasonable minds to mean different things. The Dissent’s test, I therefore believe, offers scant security to writers and speakers *167 against devastating consequences for plainly human, and probably harmless, error. *
My dissenting colleague is a reasonable person, as is the author of the majority opinion and the district judge in this case. Striving mightily to apply the "reasonable reader” test, reasonable judges nonetheless arrive at different conclusions. I do not on that basis attribute to my dissenting colleague the sin of "subjectivity” or "standardless[ness].” See Dissent at 322. But if the judges in the majority are vulnerable to that charge, so is my dissenting colleague, in equal measure.