It Had to Be a Matter of Public Concern: Expanding & Codifying the Connick Test for Private Matters

Abstract

Public employees, as citizens in many other respects, may be compelled to testify on private matters unrelated to and outside the scope of their job duties. However, this distinction requires reconsideration of the threshold public concern standard, as explained in Connick v. Myers. By challenging how courts apply the factors through inclusion of express government interest statements in statutory and constitutional language, parties’ agency connections for context, and applying free speech time, manner, and place considerations to the form of the speech, courts should find that some private matters may actually relate to public concern and policy. Even where courts may be hesitant to adopt such analytics, Congress and state legislatures have incentives to codify protection of public employee testimony on private matters which touch public concern, due in large part to the significant state and federal public employee populations. Through flexible standards and case-by-case analyses, courts and legislatures can fairly protect employee speech where private matters and public concern converge.