71 J. Kan. Bar Assn. 1, 30-40 (2002). Free Speech Rights of Public Employees.

• Author: By Michael T. Jilka

Kansas Bar Journals

Volume 71.

71 J. Kan. Bar Assn. 1, 30-40 (2002).

Free Speech Rights of Public Employees

Kansas Bar Journal71 J. Kan. Bar Ass'n, Jan. 2002, 30-40 (2002)Free Speech Rights of Public EmployeesJilka, Michael T., Free Speech Rights of Public Employees, J. Kan. Bar Ass'n, Jan. 2002, 30-40By Michael T. JilkaI. Introduction

Prior to the 1960s, courts rejected the notion that the speech of public employees was protected by the Free Speech Clause of the First Amendment. The prevailing view of the law was summarized in Justice Holmes' pithy formulation, "[A policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman."[1] As with many other areas of constitutional law, the Warren Court forged a new doctrine to govern the free speech rights of public employees, holding that a public employee's speech on matters of public concern is entitled to constitutional protection.[2] This right is qualified and must be balanced against the government's interest in the efficient performance of public services.[3] In the ensuing four decades, the Supreme Court has, in a series of cases, developed a framework to analyze public employees' free speech rights. These cases shed light on the types of speech that is protected, the government's interest in regulating workplace speech, and the procedures lower courts must use to decide these questions.

Courts now apply a four-step framework when a public employee claims that his dismissal violates free speech rights.[4] First, the court "must determine whether the employee's speech can be 'fairly characterized as constituting speech on a matter of public concern.'"[5] If so, the court must then "balance the employee's interest, as a citizen, in commenting upon matters of public concern against 'the interest of the State, as an employer, in promoting the efficiency of the public service[s] it performs through its employees.'"[6] Assuming that this balancing test tips in favor of the employee, the employee, under the third step, must "prove that the protected speech was a substantial factor or a motivating factor in the detrimental employment decision."[7] Finally, if the employee makes this showing, the burden shifts to the employer to show "by a preponderance of evidence that it would have reached the same employment decision even in the absence of the protected speech."[8] Steps one and two concern whether the expression at issue is subject to the protection of the First Amendment. Thus, they present legal questions to be resolved by the court. In contrast, the third and fourth steps concern causation and involve questions of fact to be resolved by the jury.[9]

This article explores the development of this framework and analyzes the Tenth Circuit's application of the doctrine. In addition, this article addresses two related issues that arise in public employee[10] free speech cases, namely, disputes over the content of a public employee's speech and the qualified immunity doctrine.

2. THE PUBLIC CONCERN REQUIREMENT

   1. The Supreme Court's Jurisprudence

      The current doctrine governing public employees' free speech rights traces its roots to Pickering v. Board of Educ. of Township High Sch. Dist. 205.[11] In Pickering, a public school teacher was terminated after he sent a letter to the local newspaper that was critical of the Board. The Court stated the problem in each case is to balance the interest of the employee, as a citizen, in commenting on matters of public concern and the interest of the government, as an employer, in the efficient performance of public services.[12] Beyond this broad pronouncement framing the issue, the Court left open the question of what constitutes speech on "matters of public concern."

      Fifteen years after Pickering, the Court offered a comprehensive analysis of the doctrine in Connick v. Myers.[13] In Connick, Myers was an assistant district attorney who was dissatisfied by a proposed transfer to different duties. She responded by circulating a questionnaire during working hours to other assistants seeking opinions on office issues such as the "office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns."[14] Upon learning of Myers' actions, Connick, the district attorney, informed Myers that she was being terminated because of her refusal to accept the transfer. He also told her that her distribution of the questionnaire was considered an act of insubordination.[15] Myers filed suit in federal court, alleging she was fired "because she exercised her constitutionally guaranteed right of free speech." The district court ruled in her favor, reasoning that the issues raised in her questionnaire were matters of public concern and that Connick had failed to demonstrate the survey substantially interfered with the operations of the district attorney's office.[16] The Fifth Circuit affirmed the district court.[17] The Supreme Court granted certiorari and reversed.

      The Supreme Court noted it would not review the reasons for Myers' discharge unless her questionnaire constituted speech on a matter of public concern.[18] According to the Court, when employee expression does not relate to any matter of political, social, or other concern to the community, government employers may dismiss employees on the basis of their speech without violating the First Amendment.[19] The Court drew a distinction between matters of personal and public interest: "We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior."[20]

      In deciding whether an employee's speech addresses a matter of public concern, the Court stated the focus must be on the content, form and context of a given statement as determined by the whole record.[21] Applying that standard to the facts before it, the Court found all but one of the questions contained in Myers' survey did not address matters of public concern.[22] For example, the Court found the questions pertaining to whether Myers' coworkers had confidence in their supervisors, the level of office morale, and the need for a grievance committee were mere extensions of Myers' dispute over her proposed transfer.[23] These questions did not inform the public about the district attorney's performance of his governmental responsibilities or bring to light actual or potential wrongdoing by the district attorney. Rather, the questionnaire merely conveyed the message that a single employee was upset with the status quo. The Court summarized the questionnaire by stating, "[T]he focus of Myers' questions is not to evaluate the performance of the office but rather to gather ammunition for another round of controversy with her superiors."[24]

      The Court did find that one question in Myers' questionnaire touched upon a matter of public concern. That question asked assistant district attorneys if they "ever feel pressured to work in political campaigns on behalf of office supported candidates."[25] Noting that official pressure upon employees to work for political candidates not of the employee's own choice violated fundamental constitutional rights, the Court found the issue a matter of interest to the community about which it is essential that public employees be able to speak out freely.[26]

      The Court applied the Connick holding four years later in Rankin v. McPherson.[27] In Rankin, McPherson, a clerical employee in the Harris County Constable's office heard a radio report of an assassination attempt on President Ronald Reagan. Upon hearing the report, McPherson told a coworker, "[I]f they go for him again, I hope they get him."[28] Unbeknownst to McPherson, another Deputy Constable overheard her remark and reported it to Rankin, the sheriff. Rankin summoned McPherson to his office and asked her if she had made the statement. McPherson admitted she made the statement, but said "I didn't mean anything by it."[29] Rankin immediately fired McPherson.[30]

      McPherson filed suit in federal court under § 1983,[31] alleging that Rankin violated her First Amendment rights. The district court granted summary judgment in favor of Rankin, holding that McPherson's speech was unprotected. The Fifth Circuit vacated and remanded for trial.[32] On remand, the district court once again ruled that McPherson's statements were not protected speech. The Fifth Circuit reversed,[33] holding that McPherson's remark had addressed a matter of public concern and that the government's interest did not outweigh the First Amendment interest in protecting McPherson's speech. The Supreme Court granted certiorari and affirmed.

      The Court noted the threshold question is whether McPherson's speech may be "fairly characterized as constituting speech on a matter of public concern."[34] Considering the statement in context, the Court found it plainly dealt with a matter of public concern.[35] The Court noted the statement was made in the course of a conversation addressing the policies of the Reagan Administration and came on the heels of a news bulletin regarding an attempt on the President's life.[36] The Court...