Amendment 1 — Pickering Balancing Test For Government Employee Speech

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First Amendment :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

While the government does not have complete freedom to restrict the speech of its employees, it does have some power. “[I]t cannot be gainsaid,” the Court said in Pickering v. Board of Education, “that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” [1](https://www.law.cornell.edu/constitution-conan/amendment-1/pickering-balancing-test-for-government-employee-speech#fn1amd1 " 391 U.S. 563, 568 (1968). ") Pickering concerned the dismissal of a high school teacher who had written a critical letter to a local newspaper reflecting on the administration of the school system. The letter also contained several factual errors. “The problem in any case,” Justice Thurgood Marshall wrote for the Court, “is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” [2](https://www.law.cornell.edu/constitution-conan/amendment-1/pickering-balancing-test-for-government-employee-speech#fn2amd1 " Id. at 568. ") The Court’s analysis suggested some factors that might be relevant in conducting the balancing test. Dismissal of a public employee for criticism of his superiors was improper, the Court indicated, where the relationship of employee to superior was not so close, such as day-to-day personal contact, that problems of discipline or harmony among coworkers, or problems of personal loyalty and confidence, would arise.[3](https://www.law.cornell.edu/constitution-conan/amendment-1/pickering-balancing-test-for-government-employee-speech#fn3amd1 " Id. at 568–70. Contrast Connick v. Myers, 461 U.S. 138 (1983), where Pickering was distinguished on the basis that the employee, an assistant district attorney, worked in an environment where a close personal relationship involving loyalty and harmony was important. “When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.” Id. at 151–52. ") The school board had not shown that any harm had resulted from the false statements in the letter, and it could not proceed on the assumption that the false statements were per se harmful, inasmuch as the statements primarily reflected a difference of opinion between the teacher and the board about the allocation of funds. Moreover, the allocation of funds is a matter of important public concern about which teachers have informed and definite opinions of which the community should be aware. The Pickering Court stated: “In these circumstances we conclude that the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.” [4](https://www.law.cornell.edu/constitution-conan/amendment-1/pickering-balancing-test-for-government-employee-speech#fn4amd1 " 391 U.S. at 573. The Court extended Pickering to private communications of an employee’s views to the employer in Givhan v. w. Line Consol. Sch. Dist., 439 U.S. 410 (1979), although it recognized that different considerations might arise in different contexts. That is, with respect to public speech, content may be determinative in weighing impairment of the government’s interests, whereas, with private speech, as “[w]hen a government employee personally confronts his immediate superior,. . .the manner, time, and place in which it is delivered” may also be relevant. Id. at 415 n.4. As discussed below, however, in Garcetti v. Ceballos, 547 U.S. 410 (2006), the Court held that there is no First Amendment protection at all for government employees when they make statements pursuant to their official duties. ")

Combining a balancing test of governmental interest and employee rights with a purportedly limiting statutory construction, the Court, in Arnett v. Kennedy,[5](https://www.law.cornell.edu/constitution-conan/amendment-1/pickering-balancing-test-for-government-employee-speech#fn5amd1 " 416 U.S. 134 (1974) (The quoted language is from 5 U.S.C. § 7501(a). ") sustained the constitutionality of a federal law that authorized the removal or suspension without pay of an employee “for such cause as will promote the efficiency of the service” when the “cause” cited concerned speech by an employee. The employee charged that his superiors had made an offer of a bribe to a private person. The quoted statutory phrase, the Court held, “is without doubt intended to authorize dismissal for speech as well as other conduct.” [6](https://www.law.cornell.edu/constitution-conan/amendment-1/pickering-balancing-test-for-government-employee-speech#fn6amd1 " 416 U.S. at 160. ") But, referencing its Letter Carriers analysis,[7](https://www.law.cornell.edu/constitution-conan/amendment-1/pickering-balancing-test-for-government-employee-speech#fn7amd1 " Civ. Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 578–79 (1973). ") it ruled that the authority conferred was not impermissibly vague, inasmuch as it is not possible to encompass within a statute all the myriad situations that arise in the course of employment, and inasmuch as the language used was informed by developed principles of agency adjudication coupled with a procedure for obtaining legal counsel from the agency on the interpretation of the law.[8](https://www.law.cornell.edu/constitution-conan/amendment-1/pickering-balancing-test-for-government-employee-speech#fn8amd1 " Arnett v. Kennedy, 416 U.S. 134, 158–64 (1974). ") Nor was the language overbroad, continued the Court, because it “proscribes only that public speech which improperly damages and impairs the reputation and efficiency of the employing agency, and it thus imposes no greater controls on the behavior of federal employees than are necessary for the protection of the government as an employer.. . .We hold that the language ‘such cause as will promote the efficiency of the service’ in the Act excludes constitutionally protected speech, and that the statute is therefore not overbroad.” [9](https://www.law.cornell.edu/constitution-conan/amendment-1/pickering-balancing-test-for-government-employee-speech#fn9amd1 " Id. at 162. ")

The Court clarified the Pickering inquiry in Connick v. Myers,[10](https://www.law.cornell.edu/constitution-conan/amendment-1/pickering-balancing-test-for-government-employee-speech#fn10amd1 " 461 U.S. 138 (1983). ") involving what the Court characterized, in the main, as an employee grievance rather than an effort to inform the public on a matter of public concern. The employee, an assistant district attorney involved in a dispute with her supervisor over transfer to a different section, was fired for insubordination after she circulated a questionnaire among her peers soliciting views on matters relating to employee morale. The Court found this firing permissible, stating: “When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment .” [11](https://www.law.cornell.edu/constitution-conan/amendment-1/pickering-balancing-test-for-government-employee-speech#fn11amd1 " Id. at 146. ") Whether an employee’s speech addresses a matter of public concern, the Court indicated, must be determined not only by its content, but also by its form and context.[12](https://www.law.cornell.edu/constitution-conan/amendment-1/pickering-balancing-test-for-government-employee-speech#fn12amd1 " Id. at 147–148. ") Because one aspect of the employee’s speech did raise matters of public concern, Connick also applied Pickering's balancing test, holding that “a wide degree of deference is appropriate” when “close working relationships” between employer and employee are involved.[13](https://www.law.cornell.edu/constitution-conan/amendment-1/pickering-balancing-test-for-government-employee-speech#fn13amd1 " Id. at 151–52. ") The issue of public concern is not only a threshold inquiry, but, under Connick, still figures in the balancing of interests: as the Connick Court stated, “the State’s burden in justifying a particular discharge varies depending upon the nature of the employee’s expression” and its importance to the public.[14](https://www.law.cornell.edu/constitution-conan/amendment-1/pickering-balancing-test-for-government-employee-speech#fn14amd1 " Id. at 150. ")

On the other hand, the Court has indicated that an employee’s speech may be protected as relating to matters of public concern even in the absence of any effort or intent to inform the public.[15](https://www.law.cornell.edu/constitution-conan/amendment-1/pickering-balancing-test-for-government-employee-speech#fn15amd1 " This conclusion was implicit in Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979), which the Court characterized in Connick as involving “an employee speak[ing] out as a citizen on a matter of general concern, not tied to a personal employment dispute, but. . .[speaking] privately.” 461 U.S. at 148, n.8 ") In Rankin v. McPherson[16](https://www.law.cornell.edu/constitution-conan/amendment-1/pickering-balancing-test-for-government-employee-speech#fn16amd1 " 483 U.S. 378 (1987). ") the Court held protected an employee’s comment, made to a co-worker upon hearing of an unsuccessful attempt to assassinate the President, and in a context critical of the President’s policies—If they go for him again, I hope they get him. Indeed, the Court in McPherson emphasized the clerical employee’s lack of contact with the public in concluding that the employer’s interest in maintaining the efficient operation of the office (including public confidence and good will) was insufficient to outweigh the employee’s First Amendment rights.[17](https://www.law.cornell.edu/constitution-conan/amendment-1/pickering-balancing-test-for-government-employee-speech#fn17amd1 " “Where. . .an employee serves no confidential, policymaking, or public contact role, the danger to the agency’s successful function from that employee’s private speech is minimal.” Id. at 390–91. ")

In City of San Diego v. Roe,[18](https://www.law.cornell.edu/constitution-conan/amendment-1/pickering-balancing-test-for-government-employee-speech#fn18amd1 " 543 U.S. 77 (2004) (per curiam). ") the Court held that a police department could fire a police officer who sold a video on the adults-only section of eBay that showed him stripping off a police uniform and masturbating. The Court found that the officer’s “expression does not qualify as a matter of public concern. . . and Pickering balancing does not come into play.” [19](https://www.law.cornell.edu/constitution-conan/amendment-1/pickering-balancing-test-for-government-employee-speech#fn19amd1 " <span class="cite cite-type-case" full="City of San Diego v. Roe, 543