National Treasury Employees Union v. United States

RANDOLPH, Circuit Judge,

concurring:

I join fully Judge Williams’ opinion. I write separately because it seems worth pointing out that the dissent has mixed up two different questions: who may bring a facial constitutional challenge to a statute? and when may such a challenge succeed? The first goes to standing, the second to the merits. Established Supreme Court doctrine on both questions depends on whether the facial attack rests on First Amendment free-speech grounds. If it does, the plaintiff need not show that his speech deserves First Amendment protection; he has standing to contest the statute’s constitutionality with respect to the speech of others. See, e.g., New York v. Ferber, 458 U.S. 747, 767-73 , 102 S.Ct. 3348, 3359-63 , 73 L.Ed.2d 1113 (1982); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634 , 100 S.Ct. 826, 834 , 63 L.Ed.2d 73 (1980); Gooding v. Wilson, 405 U.S. 518, 520-21 , 92 S.Ct. 1103, 1105 , 31 L.Ed.2d 408 (1972). As far as the merits are concerned, the usual rule is that a facial attack will not be sustained unless there is no set of circumstances in which the statute could constitutionally be applied. See, e.g., United States v. Salerno, 481 U.S. 739, 745 , 107 S.Ct. 2095, 2100 , 95 L.Ed.2d 697 (1987); National Fed’n of Fed. Employees v. Greenberg, 983 F.2d 286, 292 (D.C.Cir. *10 1993). In free-speech cases, the rule, an aspect of the “overbreadth” doctrine, is nearly the opposite: a statute is invalid in all its applications if it is invalid in any of them, or at least enough to make it “substantially” overbroad. See, e.g., Federal Election Comm’n v. National Conservative Political Action Comm., 470 U.S. 480, 490-501 , 105 S.Ct. 1459, 1465-70 , 84 L.Ed.2d 455 (1985); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 786-95 , 98 S.Ct. 1407, 1421-26 , 55 L.Ed.2d 707 (1978); Buckley v. Valeo, 424 U.S. 1, 44-51 , 96 S.Ct. 612, 646-50 , 46 L.Ed.2d 659 (1976) (per curiam). The dissent garbles these distinctions and winds up with the following untenable proposition — if the parties before the court are alleging that the statute unconstitutionally restricts their freedom of speech, rather than the speech of absent third parties, the statute is unconstitutional on its face only if it is unconstitutional in all its applications to them. In other words, § 501(b) of the Ethics in Government Act would be facially invalid if the only plaintiff were a GS-14 Labor Department employee making money from articles about government labor policy. But in this case it is not facially unconstitutional, according to the dissent, because everyone to whom the statute could be unconstitutionally applied is before the court. This is the equivalent of saying that if you would not have had standing in a non-free speech case, you win on the merits; but if you have standing even under the usual rules, you lose.

As to the analysis under Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968), the dissent thinks the ban on federal employees’ receiving payment for writing articles imposes a “moderate burden at most.” Dr. Johnson saw things rather differently: “No man but a blockhead ever wrote, except for money.” 4 Boswell’s Life of Johnson 29 (A. Birrell ed. 1904). Depending on what constitutes a blockhead, the aphorism may be tautological or too broad. Boswell himself had his doubts (id.). But the general proposition — that depriving authors of payment for their works significantly discourages writing — is one of the premises of the Supreme Court’s decision in Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, — U.S. -, -, -, 112 S.Ct. 501, 508-09, 511-12 , 116 L.Ed.2d 476 (1991); see also — U.S. at -, 112 S.Ct. at 512 (Kennedy, J., concurring). If Sanjour v. Environmental Protection Agency, 984 F.2d 434 (D.C.Cir.1993), stands for a different proposition, or if it too confuses the merits with standing and ignores the differences between facial attacks based on the First Amendment and those based on other constitutional provisions, it warrants reconsideration.