Freedom of Speech in the Public Workplace: A Comment on the Public Concern Requirement

Abstract

In the twenty years since the Pickering test, the U.S. Supreme Court has done little to clarify what types public employee speech constitute speech of public for the purpose receiving constitutional protection. In this Comment, Cynthia Lee offers a reformulation the Pickering test by focusing on three factors courts should examine when determining whether an employee who engages in disruptive speech should receive constitutional protection. Part One this Comment traces the historical background public employee free speech rights. Part Two examines the employee's initial hurdle showing that his or her speech was public concern, and exposes the Supreme Court's disproportionate concern for the government employer's interest in managing the workplace. Part Three explains how courts decide public employee speech cases. In Part Four, Lee presents a reformulation the Pickering test. Lee argues first that the public concern inquiry should shift the burden from the employee to the employer, and, as a threshold matter, require the employer to prove that the employee's speech clearly impaired the ability the government institution to function. If the employee's speech passes this threshold test, courts then should examine the following three factors to determine whether the employee spoke as an employee or as a citizen: (1) whether the speech took place within the office or outside in the public realm; (2) whether the speech was related to the employment; and (3) whether the speech was public concern. Lee argues that if one these factors support a finding that the employee spoke as a citizen, courts should independently review the case instead deferring to the government employer.