I’ve previously written about the landmark public employee speech case Garcetti v. Ceballos, 547 U.S. 410 (2006), which provides a threshold inquiry as to whether state actors may punish employees for their speech. Generally, speech made pursuant to employees’ work duties is not protected, while private speech is. Among the Federal Courts of Appeals, there is growing dissension as to how fact-intensive this inquiry should be. If, however, an employee is not speaking as a public official, another test is applied: The Pickering-Connick balancing test.
Public employees’ political speech is protected by the First Amendment’s guarantee of free speech, but this is not an unlimited right. Public employees may be subject to discipline prescribed in the relevant collective bargaining agreement for private speech and even expression about matters of public concern, particularly if made in a disruptive manner. See generally Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Bd. of Educ., 391 U.S. 563 (1968). In Pickering, the Supreme Court held that controversial and factually inaccurate statements made by a teacher could not be the basis for his dismissal because they were a matter of public concern and did not outweigh the government’s interest in effective administration. 391 U.S. at 574-75. Although the means for determining whether speech is of public concern are not clearly established by the court, it is clear that speech of a public concern is protected by the First Amendment and cannot be the basis for adverse employment action where the government does not reasonably believe it jeopardizes the imposition of discipline and its efficient administration. Id. As the speech that the court found to be of public concern in both Connick and Pickering related to political issues, there is a relationship between speech’s political content and the public’s interest in it. 462 U.S. at 154; 391 U.S. at 574-75.
In Pickering, the public concern at issue was the raising, collection and allocation of school taxes, a political matter affecting the entire community. Id. at 571. The manner in which it was raised did not disrupt government operations, undermine supervisory discipline, or otherwise affect workplace harmony; if it had to an extent that outweighed the public’s interest in the speech, the First Amendment would not protect it. Id. at 569-70, 574-75. The factors for determining whether a statement is a matter of public concern-its “content, form and context, as revealed by the whole record”-are established in Pickering’s successor case, Connick. 461 U.S. at 147-48. In that case, the questionnaire circulated by Myers had some extremely limited public concern based on its content, form and context, as it related to employment abuses in an ongoing political race, but was not protected because her supervisor reasonably believed it undermined his disciplinary authority and jeopardized office harmony because of the personal attacks it contained. Id. at 153-54.
Combined, these cases comprise the Pickering-Connick test. When a public employee makes a statement, its content, form and context is examined in the totality of the record to determine if it is a matter of public concern, and the employee’s expression cannot be reasonably believed to cause harm to workplace harmony, discipline or operations. Because of the many forms employee speech and matters of public concern may take, the Supreme Court did not deem it appropriate or feasible to promulgate a general standard by which all statements are judged. Id. at 154, citing Pickering, 391 U.S. at 569.
Even if public employees’ statements thread the narrow Garcetti needle and constitute private speech, the Pickering-Connick test must still be overcome for the statements to have First Amendment protection. This is an imprecise, fact-intensive standard that leads to cases being decided individually. Though this approach is ideal for employees, as it gives each instance of speech the potential to be spared from employer discipline, it has unpredictable results – especially when the speech and circumstances at issue are dissimilar from other cases. Indeed, each workplace and its chain of command are unique, and the disruptive effects of speech may vary greatly from one circumstance to another.
The Pickering-Connick standard is also sympathetic to public employers, as speech is protected if it is of a public concern and not reasonably believed by the employer to jeopardize the imposition of discipline and the employer’s efficient administration. Therefore, if the court find that the employer reasonably believed the speech compromised these goals, the employee’s speech is not protected by the First Amendment, and he or she is subject to appropriate discipline. This yields a balancing act between the public significance of the speech, how it was made, and the reasonableness of the public employer’s belief. Employees are protected by the test’s requirement for employer beliefs to be reasonable, but this falls short of a full guarantee of constitutionally protected speech, as the employer retains discretion to punish employees for speech it reasonably believes threatens workplace order and efficacy.
