[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] in Borough of Duryea v. Guarnieri [Cornell LII backgrounder; JURIST report] that state and local government employees may not sue their employers for retaliation under the Petition Clause [FAC backgrounder] of the First Amendment when they petition the government on matters of private concern. To show that an employer interfered with rights under the Speech Clause of the First Amendment, an employee must show that his speech related to a matter of public concern. The court held that this test also applies when the employee invokes the Petition Clause. Respondent Charles Guarnieri filed a union grievance after being terminated as chief of police for the borough of Duryea. An arbitrator found that the borough council committed procedural errors and ordered that Guarnieri be reinstated as chief of police. The council instituted several directives that Guarnieri complained lacked a “warm welcome feeling,” a complaint that the court deemed “private.” Justice Anthony Kennedy, writing for the majority, indicated that using one test for both the Speech and Petition Clauses of the First Amendment is appropriate:

Articulation of a separate test for the Petition Clause would aggravate potential harm to the government’s interests by compounding the costs of compliance with the Constitution. A different rule for each First Amendment claim would require employers to separate petitions from other speech in order to afford them different treatment; and that, in turn, would add to the complexity and expense of compliance with the Constitution.

Because respondent Charles Guarnieri’s petition was related to a matter of private concern, the Supreme Court reversed the US Court of Appeals for the Third Circuit ruling.

Justice Antonin Scalia disagreed with the majority with respect to the “public concern” requirement, stating that the doctrine “frustrates the principal purpose of the Petition Clause.” Scalia also would have held that the Petition Clause does not apply to petitions directed to the government acting as the petitioner’s employer.