United States v. National Treasury Employees Union
513 U.S. 454 (1995)
Congress enacted a law (Ethics
in Government Act) that prohibited
Federal employees from accepting any compensation for writing articles or
making speeches, even if they were on subjects completely unconnected to
the employee's job.
For example, if you worked
for the Dept. of Transportation and wanted to write a sci-fi novel on the
side, you couldn't get paid for it.
The NTEU sued, claiming that
the law was an unconstitutional infringement on their 1st
Amendment right to free speech.
Technically, the law didn't
stop anybody from doing anything, but the NTEU argued that the
prohibition on compensation would have a chilling effect on people's
willingness to speak.
The Trial Court found the law
to be unconstitutional. The US appealed.
The US claimed that there
was a compelling government interest
in not giving the appearance of impropriety.
For example, if the head of
the FDA gave a speech at a drug manufacturers' conference and got paid a
lot of money, that might look suspicious.
The Appellate Court affirmed.
The US appealed.
The US Supreme Court affirmed.
The US Supreme Court found
that the law imposed a significant burden on those who wanted to make
speeches or write for publications. It also imposes a significant burden
on the public's right to read and hear what the employees would have
otherwise written and said.
The Court noted that
Nathanial Hawthorne and Herman Melville were US government employees
when they wrote their classic novels, and this law would have likely
stopped them from writing.
The Court basically found
that the law was not narrowly tailored because it banned all payments. Theoretically, if a law was
much more tightly focused, say for example if it only affected high-level
employees speaking on subjects related to their jobs, then maybe it could
have met constitutional muster.
The important concept
illustrated by this case is that, under the right circumstances, a
prohibition on compensation can be considered an infringement on the 1st
Amendment's right to free speech.