2.115 - (3) Application Of Pickering To Hybrid And Freedom Of Association Claims

• Jurisdiction: New York

(3) Application of Pickering to Hybrid and Freedom
of Association Claims

Whether the Pickering balancing test should be utilized in examining freedom of association claims or hybrid free speech/freedom of association claims remains unresolved by the U.S. Supreme Court. However, the Second Circuit has joined those courts which have determined that the claims should be treated as, effectively, cognate, requiring that the associational activity relate to a matter of public concern, and the rights of the parties balanced.¹⁴⁶¹

Likewise, in Melzer v. Board of Education,¹⁴⁶² the Second Circuit ruled that although political associational activities by non-policy-making employees will be given heightened protections under Elrod v. Burns¹⁴⁶³ and Branti v. Finkel,¹⁴⁶⁴ associational speech activities, unrelated to partisan politics, resulting in actual disruption in the workplace are subject to balancing of the respective rights of the public employer against those of the public employee.

In Knight v. Connecticut Department of Public Health,¹⁴⁶⁵ the Second Circuit declined to apply the heightened strict scrutiny standard to a hybrid claim implicating both free speech and free exercise issues under the First Amendment.

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Notes:

^[1461] . Cobb v. Pozzi, 363 F.3d 89, 102–03 (2d Cir. 2003) (Court holds, “joining the Fourth, Sixth and Seventh circuits, hold that a public employee bringing a First Amendment freedom of association claim must persuade a court that the associational conduct at issue touches on a matter of public concern.” (Citing Klug v. Chicago Sch. Reform Bd. of Trs., 197 F.3d 853, 857 (7th Cir. 1999); Edwards v. City of Goldsboro, 178 F.3d 231, 249–50 (4th Cir. 1999); Boals v. Gray, 775 F.2d 686, 692 (6th Cir. 1985) (“We perceive no logical reason for differentiating between speech and association in applying Connick to first amendment claims, and hold that it is so applicable.”)). See also Martin v. City of Del City, 179 F.3d 882, 888 (10th Cir. 1999). Contra D’Angelo v. School Bd., Polk Co., 497 F.3d 1203, 1212 (11th Cir. 2007) (“We have long held that, unlike speech or petitions by public employees, associational activity by public employees need not be on matters of public concern to be protected under the First Amendment.”).

The Second Circuit has also applied the balancing test to First Amendment associational and hybrid association/free speech claims. See, e.g. Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of New York, 502 F.3d 136...