Does the Constitution protect public employees from employer retaliation for exercising their free speech rights? In the 1968 case of Pickering v. Board of Education, the Supreme Court developed a balancing test to be applied to cases in which a public employee alleges that she was discharged or otherwise disciplined because she exercised her first amendment right to speak. Connick v. Myers, the most recent case applying the Pickering doctrine, vests employers with considerable discretion to penalize employees whose speech they feel will disrupt the functioning of the office. In holding that an employee will be protected against adverse employment decisions only if her speech involves matters of “public concern,” the Connick Court has departed from its traditional position that only certain narrowly defined categories of speech, such as libel, obscenity, child pornography, and “fighting words,” are outside the protection of the first amendment.
Connick sets a dangerous precedent because it exaggerates the limited importance of the employer’s judgment with regard to the constitutional right of free speech. The opinion also highlights the inadequacy of the Pickering balancing test as a means of securing values central to the first amendment.
This Note uses the Connick case as a framework for a critical examination of the Pickering test. Part I summarizes the evolution of jurisprudence in this area, the factual background of Connick, and the reasoning the court employed in reaching its decision. Part II examines each branch of the Pickering inquiry separately, using Connick and other important cases to illustrate the test and its negative impact on public employees’ first amendment rights. Finally, Part III suggests ways in which the existing adjudicatory standard might be refined to better serve the purpose of protecting the public employee’s right to speak freely without fear of retaliation.
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