Section 4 Pickering Balancing Test

• Library: Emp-Emp Law 2000

If the public employee shows that his or her speech related to a matter of public concern, the court must weigh the interest of the employee, as a citizen, “in commenting upon matters of public concern” against the interest of the employer “in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Educ. of Township High Sch. Dist. 205, 391 U.S. 563, 568 (1968); Rankin v. McPherson, 483 U.S. 378, 384 (1987). Like the issue of public concern, the Pickering balance is for the court, though it may rest on predicate facts found by the jury concerning disruption in the workplace. Dunn v. Carroll, 40 F.3d 287 (8^th Cir. 1994). See also Porter v. Dawson Educ. Serv. Coop., 150 F.3d 887 (8^th Cir. 1998) (based on jury determination in special interrogatories that employee’s speech caused or could have caused disharmony in the workplace, court found the Pickering balance tipped against the employee). According to the plurality in Waters v. Churchill, 511 U.S. 661 (1994), a court should apply the balancing test to the speech that the employer reasonably believed the employee made—not the speech the jury found was made. The Eighth Circuit, in Tindle v. Caudell, 56 F.3d 966 (8^th Cir. 1995), applied the logic of Waters in upholding summary judgment for the employer police department, which reasonably predicted that disruption could result from a police officer wearing a “blackface” costume to a party with co-workers.

Because of the enormous variety of circumstances in which a conflict may arise between a public employee’s speech and the public employer’s desire to limit it, it is difficult to generalize about the application of the Pickering test. The Court itself observed that it was not “appropriate or feasible to attempt to lay down a general standard” against which all types of speech may be judged. Pickering, 391 U.S. at 569. The outcome of the “balance” depends on the particular facts and competing interests involved in each conflict, including the following:

(1) the need for harmony in the office or work place; (2) whether the government’s responsibilities require a close working relationship to exist between the plaintiff and co-workers when the speech in question has caused or could cause the relationship to deteriorate; (3) the time, manner, and place of the speech; (4) the context in which the dispute arose; (5) the degree of public interest in the speech; and (6) whether the speech impeded the employee’s ability to perform his or her duties.

Bowman v. Pulaski County Special Sch. Dist., 723 F.2d 640, 644 (8^th Cir. 1983). Certain guidelines about the regulation of a public employee’s speech may be drawn from the role these factors have played in particular decisions.

Only in rare circumstances will a public employer be permitted to penalize a public employee...