Pickering Balancing Test for Government Employee Speech

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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 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 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 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

Combining a balancing test of governmental interest and employee rights with a purportedly limiting statutory construction, the Court, in Arnett v. Kennedy,5 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 But, referencing its Letter Carriers analysis,7 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 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

The Court clarified the Pickering inquiry in Connick v. Myers,10 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 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 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 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

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 In Rankin v. McPherson16 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

In City of San Diego v. Roe,18 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 The Court also noted that the officer’s speech, unlike federal employees’ speech in United States v. National Treasury Employees Union (NTEU),20 “was linked to his official status as a police officer, and designed to exploit his employer’s image,” and therefore “was detrimental to the mission and functions of his employer.” 21 The Court, therefore, had “little difficulty in concluding that the City was not barred from terminating Roe under either line of cases [that is, Pickering or NTEU].” 22

In Garcetti v. Ceballos, the Court held that there is no First Amendment protection—Pickering balancing is not to be applied— “when public employees make statements pursuant to their official duties,” even if those statements are about matters of public concern.23 In this case, a deputy district attorney had presented his supervisor with a memo expressing his concern that an affidavit that the office had used to obtain a search warrant contained serious misrepresentations. The deputy district attorney claimed that he was subjected to retaliatory employment actions, and he sued. The Supreme Court held “that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” 24 The fact that the employee’s speech occurred inside his office, and the fact that the speech concerned the subject matter of his employment, were not sufficient to foreclose First Amendment protection.25 Rather, the “controlling factor” was “that his expressions were made pursuant to his duties.” 26

In distinguishing between wholly unprotected “employee speech” and quasi-protected “citizen speech,” sworn testimony outside of the scope of a public employee’s ordinary job duties appears to be “citizen speech.” In Lane v. Franks,27 the director of a state government program for underprivileged youth was terminated from his job following his testimony regarding the alleged fraudulent activities of a state legislator that occurred during the legislator’s employment in the government program. The employee challenged the termination on First Amendment grounds.

The Court held generally that testimony by a subpoenaed public employee made outside the scope of his ordinary job duties is to be treated as speech by a citizen, subject to the Pickering-Connick balancing test.28 The Court noted that “[s]worn testimony in judicial proceedings is a quintessential example of speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation to the court and society at large, to tell the truth.” 29 In so holding, the Court confirmed that Garcetti's holding is limited to speech made in accordance with an employee’s official job duties and does not extend to speech that merely concerns information learned during that employment. The Court in Lane ultimately found that the plaintiff’s speech deserved protection under the Pickering-Connick balancing test because the speech was both a matter of public concern (the speech was testimony about misuse of public funds) and the testimony did not raise concerns for the government employer.30

In a 2022 case, the Supreme Court expressly connected the issue of public employee speech to the related issue of government speech,31 saying that the Free Speech Clause question in Kennedy v. Bremerton School District turned on whether a football coach had acted “in his capacity as a private citizen,” or whether instead his actions “amount[ed] to government speech attributable to” his public employer.32 The school had disciplined the coach for praying at the 50-yard line immediately after football games, while he was still on duty.33 The parties agreed that the coach’s prayer implicated a matter of public concern, but the school argued his speech was unprotected under Pickering because he was speaking in his official capacity as a public employee.34 The Court held instead that the coach’s prayers were private speech, stating the speech was not within the scope of his ordinary duties and he “was not seeking to convey a government-created message.” 35 The Court noted further that during this postgame period, employees “were free to attend briefly to [other] personal matters” and students were engaged in other activities, suggesting the coach’s “prayers were not delivered as an address to the team, but instead in his capacity as a private citizen.” 36 Although the coach was on duty and his prayers were delivered at his workplace, these facts were not dispositive to the analysis.37 Ultimately, the Court held that the school had not met its burden to justify the restrictions on the coach’s religious speech.38

The protections applicable to government employees have been extended to independent government contractors, the Court announcing that “the Pickering balancing test, adjusted to weigh the government’s interests as contractor rather than as employer, determines the extent of their protection.” 39

In sum, although a public employer may not muzzle its employees or penalize them for their expressions and associations to the same extent that a private employer can,40 the public employer nonetheless has broad leeway in restricting employee speech. If the employee speech does not relate to a matter of “public concern,” then Connick applies and the employer is largely free of constitutional restraint.41 If the speech does relate to a matter of public concern, then unless the speech was made by an employee pursuant to his duties, Pickering's balancing test is applied, with the governmental interests in efficiency, workplace harmony, and the satisfactory performance of the employee’s duties42 balanced against the employee’s First Amendment rights.43 Although the general approach is easy to describe, it has proven difficult to apply.44 The First Amendment, however, does not stand alone in protecting the speech of public employees; statutory protections for “whistleblowers” add to the mix.45

1: 391 U.S. 563, 568 (1968).
2: Id. at 568.
3: 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.
4: 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.
5: 416 U.S. 134 (1974) (The quoted language is from 5 U.S.C. § 7501(a).
6: 416 U.S. at 160.
7: Civ. Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 578–79 (1973).
8: Arnett v. Kennedy, 416 U.S. 134, 158–64 (1974).
9: Id. at 162.
10: 461 U.S. 138 (1983).
11: Id. at 146.
12: Id. at 147–148.
13: Id. at 151–52.
14: Id. at 150.
15: 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
16: 483 U.S. 378 (1987).
17: “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.
18: 543 U.S. 77 (2004) (per curiam).
19: Id. at 84.
20: 513 U.S. 454 (1995). For discussion on United States v. NTEU, see Amdt1.7.9.3 Honoraria and Government Employees.
21: City of San Diego v. Roe, 543 U.S. 77, 84 (2004) (per curiam).
22: Id. at 80.
23: 547 U.S. 410, 421 (2006).
24: Id. at 421. However, “[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” Id. at 419. Such necessity, however, may be based on a “common-sense conclusion” rather than on “empirical data.” Tenn. Secondary Sch. Athletic Ass’n v. Brentwood Acad., 551 U.S. 291, 300 (2007) (citing Garcetti).
25: Id. at 421.
26: Id.
27: 573 U.S. 228 (2014).
28: Id. at 238.
29: Id.
30: Id. at 241–42. The Court, however, held that because no relevant precedent in the lower court or in the Supreme Court clearly established that the government employer could not fire an employee because of testimony the employee gave, the defendant was entitled to qualified immunity. Id. at 243.
31: See Amdt1.7.8.2 Government Speech and Government as Speaker.
32: Kennedy v. Bremerton Sch. Dist., No. 21-418, slip op. at 16 (U.S. June 27, 2022).
33: Id. at 7.
34: See id. at 16.
35: Id. at 17.
36: Id. at 17–18.
37: Id. See also id. at 18 (suggesting it would be inappropriate to treat “everything teachers and coaches say in the workplace as government speech subject to government control” ).
38: See id. at 19–20. This aspect of the Court’s ruling, which turned on an interpretation of the First Amendment’s Establishment Clause, is discussed in Amdt1.3.7.2 Coercion and Establishment Clause Doctrine.
39: Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 673 (1996). See also O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 715 (1996) (government may not “retaliate[ ] against a contractor, or a regular provider of services, for the exercise of rights of political association or the expression of political allegiance” ).
40: See, e.g., Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S. 507 (1980) (political patronage systems impermissibly infringe protected belief and associational rights of employees); Madison Sch. Dist. v. WERC, 429 U.S. 167 (1976) (school teacher may not be prevented from speaking at a public meeting in opposition to position advanced by union with exclusive representation rights). The public employer may, as may private employers, permit collective bargaining and confer on representatives of its employees the right of exclusive representation, Abood v. Detroit Bd. of Educ., 431 U.S. 209, 223–32 (1977), but the fact that its employees may speak does not compel government to listen to them. See Smith v. Ark. State Highway Emps., 441 U.S. 463 (1979) (employees have right to associate to present their positions to their employer but the employer is not constitutionally required to engage in collective bargaining). See also Minn. State Bd. for Cmty. Coll. v. Knight, 465 U.S. 271 (1984) (public employees not members of union have no First Amendment right to meet separately with public employers compelled by state law to “meet and confer” with exclusive bargaining representative). Government may also inquire into the fitness of its employees and potential employees, but it must do so in a manner that does not needlessly endanger the expression and associational rights of those persons. See, e.g., Shelton v. Tucker, 364 U.S. 479 (1969).
41: In Connick, the Court noted that it did not suggest “that Myers’ speech, even if not touching upon a matter of public concern, is totally beyond the protection of the First Amendment.” Rather, it was beyond First Amendment protection “absent the most unusual of circumstances.” Connick v. Myers, 461 U.S. 138, 147 (1983). In Ceballos, however, the Court, citing Connick at 147, wrote that, if an employee did not speak as a citizen on a matter of public concern, then “the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).
42: In some contexts, the governmental interest is more far-reaching. See Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (interest in protecting secrecy of foreign intelligence sources).
43: The Court stated in Janus v. AFSCME, Council 31, No. 16-1466, slip op. at 23–24 (U.S. June 27, 2018), that this analysis “requires modification” when a court considers “general rules that affect broad categories of employees.” In such a case, “the government must shoulder a correspondingly ‘heav[ier]’ burden and is entitled to considerably less deference in its assessment that a predicted harm justifies a particular impingement on First Amendment rights.” Id. at 24 (quoting United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 466 (1995)) (alteration in original).
44: In Waters v. Churchill, 511 U.S. 661 (1994), a plurality of a divided Court concluded that a public employer does not violate the First Amendment if the employer (1) had reasonably believed that the employee’s conversation involved personal matters and (2) dismissed the employee because of that reasonable belief, even if the belief was mistaken. Id. at 679–80 (plurality opinion) (O’Connor, J., joined by Rehnquist, C.J., Souter and Ginsburg, JJ.). More than two decades later, a six-Justice majority approvingly cited to the plurality opinion from Waters, concluding that the employer’s motive is dispositive in determining whether a public employee’s First Amendment rights had been violated as a result of the employer’s conduct. See Heffernan v. City of Paterson, 578 U.S. 266, 272 (2016). In so doing, the Court held that the converse of the situation in Waters —a public employer’s firing of an employee based on the mistaken belief that the employee had engaged in activity protected by the First Amendment—was actionable as a violation of the Constitution. See id. ( “After all, in the law, what is sauce for the goose is normally sauce for the gander.” ). Put another way, when an employer demotes an employee to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment, “even if. . .the employer makes a factual mistake about the employee’s behavior.” Id. at 273. The Court concluded that the employer’s motivation is central with respect to public employee speech issues because of (1) the text of the First Amendment—which “focus[es] upon the activity of the Government” ; and (2) the underlying purposes of the public employee speech doctrine, which is to prevent the chilling effect that results when an employee is discharged for having engaged in protected activity. Id. at 273–74.
45: See, e.g., Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16.