513 U.S. 454 (1995)
In 1989 Congress enacted the Ethics Reform Act, which amended § 501(b) of the Ethics in Government Act of 1978 to provide that an individual may not receive any honorarium while that individual is a Member, officer or employee.1
The term honorarium was defined as a payment of money or any thing of value for an appearance, speech or article.2 The prohibition included an express exception for actual and necessary travel expenses.3 It contained an implicit exception for books.4 The ban applied to nearly all employees in the executive, legislative, and judicial branches.5
The respondents are the National Treasury Employees Union and several individual career civil servants employed full time by Executive departments and agencies below grade GS-16.6 The individual respondents had previously received compensation for writing or speaking on topics unrelated to their duties.7 These included a mail handler who lectured on the Quaker religion, an aerospace engineer who lectured on black history for $100 per lecture, a microbiologist who earned almost $3,000 per year reviewing dance performances, and a tax examiner who wrote articles about the environment.8
In 1992 the respondents filed suit in the United States District Court for the District of Columbia challenging the constitutionality of the honoraria ban.9 Pursuant to a stipulation with the Government, the District Court certified the Union as the representative of a class composed of all Executive Branch employees below grade GS-16 who would receive honoraria but for the statute.10
The District Court granted respondents' motion for summary judgment, held the statute unconstitutional insofar as it applies to Executive Branch employees, and enjoined enforcement against any such employee.11 The Court of Appeals for the District of Columbia Circuit affirmed the judgment as to the individual respondents and the class but upheld the statute as applied to high-level officials.12 It also severed the application of the ban to the Executive Branch from the remainder of the statute.13
The Supreme Court granted certiorari.14
Whether 5 U.S.C. App. § 501(b) violates the First Amendment as applied to Executive Branch employees below grade GS-16 who receive honoraria for speeches and articles unrelated to their official duties?15
Under the Pickering balancing test, a statutory restriction on employee speech that chills potential speech before it happens requires special justification.16 The restriction affects a massive number of potential speakers.17 The Government must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression's necessary impact on the actual operation of the Government.18
Yes. Applying the Pickering test to the established facts, the honoraria ban imposes a significant burden on the expressive activities of low-level Executive Branch employees below grade GS-16.19 Examples include the mail handler who lectured on the Quaker religion and the aerospace engineer who lectured on black history for one hundred dollars per lecture.20 The ban denies them compensation for speech unrelated to their duties.21
There is no evidence of interference with official duties or appearance of impropriety among the certified class.22 The Government has not demonstrated any actual or apparent impropriety among these employees.23 It relies instead on concerns with high-level officials that motivated the statute.24 The ban's text and regulations contain anomalies that undermine its justification.25
The honoraria ban violates the First Amendment as applied to the respondent class of Executive Branch employees below grade GS-16.26
Related opinions on this issue
Joined by Justice Scalia And Justice Thomas
Chief Justice Rehnquist dissented from the majority's application of the Pickering test.27 He argued that the Government's interest in preventing the appearance of impropriety and corruption is compelling.28 Congress was entitled to enact a prophylactic rule applicable to all federal employees.29
Tax examiners, bank examiners, and other lower-level workers have substantial power to confer favors even though their compensation level is below grade GS-16.30 The Court of Appeals judgment should therefore be reversed.31 Rehnquist emphasized that the honoraria ban is content-neutral and imposes only a limited burden because it denies compensation rather than prohibiting speech outright.32
Justice O'Connor concurred in the judgment in part and dissented in part.33 She agreed that the ban is unconstitutional as applied to non-work-related speech by the respondent class.34 She placed significant weight on the employees' side of the Pickering balance because the ex ante prohibition chills a broad range of expression on matters of public interest.35
O'Connor disagreed with the breadth of the remedy.36 She would have limited invalidation to speech without nexus to Government employment while upholding the statute for work-related speech.37 She stressed that the class definition includes members who might receive honoraria for activities with a nexus to their duties.38
Whether the Court of Appeals' remedy severing the honoraria ban's application to Executive Branch employees and enjoining enforcement against the certified class was the appropriate form of relief?39
When a statute is unconstitutional as applied to a certified class, the appropriate remedy limits relief to the parties before the Court.40 The Court leaves to Congress the task of drafting a narrower statute rather than rewriting the provision through judicial legislation or extending relief to nonparties.41
No. The Court of Appeals' remedy that severed the ban's application to the Executive Branch and enjoined enforcement against the entire certified class of employees below grade GS-16 went too far.42 It granted relief to nonparties and to situations involving a nexus to employment.43 The proper relief is limited to the parties before the Court who engage in speech with no nexus to their duties.44 The Court declined to craft a judicial nexus requirement or to rewrite the statute.45
The Court of Appeals' remedy was not the appropriate form of relief because it extended beyond the parties and required judicial rewriting of the statute.46
Related opinions on this issue
Joined by Justice Scalia And Justice Thomas
Chief Justice Rehnquist dissented from the remedy as well.47 He argued that even if the ban violated the First Amendment as to unrelated speech, the Court should have affirmed the Court of Appeals only insofar as it enjoined enforcement against employees seeking honoraria unrelated to their Government employment.48
Rehnquist noted that respondents themselves acknowledged a narrower remedy would achieve their central aim.49 He criticized the majority for striking down the statute as applied to the entire class regardless of nexus.50
Justice O'Connor concurred in the judgment in part and dissented in part on the remedy.51 She agreed that relief should be limited to the parties before the Court.52 She argued that the Court should have drawn a nexus line to invalidate the ban only as to speech without nexus to Government employment rather than enjoining the entire provision against the class.53
O'Connor viewed the majority's approach as painting with too broad a brush and preferred a tailored invalidation that preserved the statute for work-related speech by class members.54