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First Amendment Library:
Gregory O’Duden


In 1989, Congress adopted legislation that, among other things, prohibited all governmental employees from receiving compensation for their speaking and writing. Lower level executive branch employees who in the past had received compensation for writing and speaking on subjects unrelated to their employment challenged the law, claiming that it unconstitutionally infringed on their First Amendment rights. The district court and appellate court agreed. In Pickering v. Board of Ed. of Township High School Dist., 391 U.S. 563 (1968), the U.S. Supreme Court held that Congress may impose restraints on job-related speech of public employees, even if these restraints would be unconstitutional if applied to non-public employees. When these restraints are challenged, courts must balance the employee's interest in commenting upon matters of public concern against the government's interest in promoting the efficiency of the public services that it performs through its employees.