First Amendment Speech – Government Employees

GENERALLY

When government employees speak on matters of public concern their speech is entitled to First Amendment protection under the standard set forth in Pickering v. Board of Education. See 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968); see also Connick v. Myers, 461 U.S. 138, 147-49, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983) (speech of public employees on matters of merely private concern such as personal employment grievances is unprotected). Under the Pickering standard, the Court must balance "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as employer, in promoting the efficiency of the public services it performs through its employees." 391 U.S. at 568. This balancing test applies equally to speech within the workplace as it does to speech outside it. See Rankin v. McPherson, 483 U.S. 378, 383, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987) (Pickering balancing applied to employee's on-the-job statements).

Example: Usher v. Spotsylvania

POLITICAL AFFILIATION - IT DEPENDS

In Elrod v. Burns, 427 US 347 (1976), the United States Supreme Court established that public employees in confidential and policymaking positions may be dismissed on the basis of political affiliation without violating the 1st Amendment. Reaffirmed in Branti v. Finkel, 445 US 507 (1980).