In the twenty years since the Pickering test, the U.S. Supreme Court has done little to clarify what types of public employee speech constitute speech "of public concern" for the purpose of receiving constitutional protection. In this Comment, Cynthia Lee offers a reformulation of 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 of this Comment traces the historical background of public employee free speech rights. Part Two examines the employee's initial hurdle of showing that his or her speech was of 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 of 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 of 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 of public concern. Lee argues that if one of these factors support a finding that the employee spoke as a citizen, courts should independently review the case instead of deferring to the government employer.
GW Paper Series
GWU Law School Public Law Research Paper No. 311; GWU Legal Studies Research Paper No. 311
Cynthia Lee, Freedom of Speech in the Public Workplace: A Comment on the Public Concern Requirement, 76 Cal. L. Rev. 1109 (1988).