Barr v. Matteo (360 U.S. 564)/Concurrence Black

[p576] MR. JUSTICE BLACK, concurring.


I concur in the reversal of this judgment but briefly summarize my reasons because they are not altogether the same as those stated in the opinion of MR. JUSTICE HARLAN.

The petitioner Barr, while acting as Director of the Office of Rent Stabilization, a United States Government Agency, issued a press release in which he gave reasons why he intended to suspend the respondents Matteo and Madigan, who were also officers of the Agency. There is some indication in the record that there was an affirmative duty on Mr. Barr to give press releases like this, but however that may be it is clear that his action was forbidden neither by an Act of Congress nor by any governmental rule duly promulgated and in force. It is also clear that [p577] the subject matter discussed in the release was germane to the proper functioning of the Rent Stabilization Agency and Mr. Barr's duties in relation to it. In fact, at the time the release was issued congressional inquiries were being made into the operations of the Agency and the controversy upon which the threatened suspensions were based, and the press release revealed that Barr had requested an opportunity to testify before a Congressional Committee with respect to the whole dispute.

The effective functioning of a free government like ours depends largely on the force of an informed public opinion. This calls for the widest possible understanding of the quality of government service rendered by all elective or appointed public officials or employees. Such an informed understanding depends, of course, on the freedom people have to applaud or to criticize the way public employees do their jobs, from the least to the most important.

Mr. Barr was peculiarly well qualified to inform Congress and the public about the Rent Stabilization Agency. Subjecting him to libel suits for criticizing the way the Agency or its employees perform their duties would certainly act as a restraint upon him. So far as I am concerned, if federal employees are to be subjected to such restraints in reporting their views about how to run the government better, the restraint will have to be imposed expressly by Congress and not by the general libel laws of the States or of the District of Columbia.[1] How far the Congress itself could go in barring federal officials and employees from discussing public matters consistently with the First Amendment is a question we need not reach in this case. It is enough for me here that the press release was neither unauthorized nor plainly [p578] beyond the scope of Mr. Barr's official business, but instead related more or less to general matters committed by law to his control and supervision. See Spalding v. Vilas, 161 U.S. 483, 493, 498-499.

Notes

  1. ↑ This case concerns District of Columbia law. In a companion case, Howard v. Lyons, post, p. 593, the Court rejects an attempt to hold a federal employee liable under the libel law of Massachusetts.
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