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.