Recklessly False Statements in the Public-Employment Context

Abstract

During the course of a high profile criminal prosecution, a police officer accuses the District Attorney of fabricating evidence. Days before a bond election, a teacher accuses school board members of misusing public funds. In cases like these, government employers often seek to discipline public employees for making controversial or imprudent statements about matters of public concern. In Pickering v Board of Education, the Supreme Court held that a public employee's true or negligently false statements about matters of public concern are protected by the Constitution unless the government employer's interest in efficiently performing its public duties outweigh the First Amendment interests in the employee's speech.' Many courts have construed this holding to require that the employee's speech be protected unless the employer establish actual harm resulting from the employee's statements.2 The Pickering Court, however, expressly declined to decide whether statements by public employees about matters of public concern are constitutionally protected when those statements are knowingly or recklessly false.3 Since Pickering, the Supreme Court has on several occasions considered the First Amendment interests in the speech of public employees. Although it has refined other aspects of the Pickering analysis,4 the Court has not resolved the question of when, if