In Connick v. Myers, 461 U.S. 138 (1983), the Supreme Court revisited the Pickering balancing test for determining whether a public employee’s speech is entitled to First Amendment protection. The Court held that the First Amendment requires a balancing between the interests of a government employee to speak as a citizen on matters of public concern, and the interests of the government, as an employer, to promote the efficiency of the operations it performs through its employees. Applying this test in Connick, the Court held that the First Amendment did not protect an Assistant District Attorney from discharge for distributing a questionnaire to coworkers about office policies, confidence in their supervisors, and whether the employees felt pressure to work on political campaigns.
Facts
Myers was employed as an Assistant District Attorney in New Orleans. Her job duties entailed trying criminal cases. When the District Attorney proposed to transfer Myers to prosecute cases in a different section of the criminal court, she strongly opposed the transfer. Myers expressed her opposition to the transfer to several of her supervisors, including the District Attorney.
Soon after sharing her views with the District Attorney, Myers prepared a questionnaire that she distributed to the other Assistant District Attorneys in the office. The contents of Myers’ questionnaire concerned the office transfer policy, office morale, the need for a grievance committee, employees’ level of confidence in supervisors, and whether employees felt pressured to work in political campaigns.
The District Attorney then told Myers that she was being terminated for refusing to accept the transfer, and further told her that her distribution of the questionnaire was an act of insubordination. Myers filed suit against the District Attorney, alleging that she was wrongfully discharged in retaliation for exercising her constitutionally protected right of free speech.
The trial court agreed and ordered the District Attorney to reinstate Myers. In so finding, the trial court determined that Myers’ questionnaire, not her refusal to accept the transfer, was the real reason the District Attorney terminated her. The court held that the questionnaire involved matters of public concern and that the District Attorney had not “clearly demonstrated” that the questionnaire interfered with the operation of the District Attorney’s office. The Court of Appeals affirmed. The District Attorney appealed. 461 U.S. at 140-42.
The Court’s Decision
The Connick Court held that Myers’ termination did not violate the First Amendment.
First, the Court observed that under Pickering’s test for determining a public employee’s free speech rights, the problem is to arrive “at a balance between the interests of the [employee], as a citizen, in commenting on matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. at 142 (quoting Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568 (1968). In short, an employee’s free speech rights must be balanced against the government employer’s interest in providing services efficiently. Connick, 461 U.S. at 142-47.
Second, the Court emphasized that the First Amendment protects speech on matters of “public concern.” Therefore, when a public employee speaks not as a citizen on matters of public concern, but instead as an employee about matters only of “personal interest,” a federal court is usually not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency in reaction to the employee’s behavior. Whether an employee’s speech addresses a matter of public concern depends on the content, form, and context of a given statement. In Connick, the Court determined that except for the question in Myers’ questionnaire about pressure on employees to work in political campaigns, the contents of the questionnaire did not fall under the rubric of matters of “public concern.” Connick, 461 U.S. at 147-48.
Third, because one of the questions in Myers’ survey touched on a matter of public concern, and contributed to her discharge, the Court had to determine whether the District Attorney was justified in discharging Myers. The Court found that the trial court erred by imposing an unduly onerous burden on the District Attorney to justify Myers’ discharge by requiring it to “clearly demonstrate” that Myers’ speech at issue “substantially interfered” with the operation of the office. The Court found that under Pickering the government’s burden in justifying a particular discharge “varies depending upon the nature of the employee’s expression.” Although this particularized balancing is difficult, the idea is to reach the “most appropriate possible balance of the competing interests.” Id. at 150.
Finally, the Court determined that under the facts in Connick the “limited” First Amendment interest involved in Myers’ questionnaire did not require the District Attorney to tolerate actions that he reasonably believed would disrupt the office, undermine his authority, and destroy working relationships within the office. Indeed, the District Attorney and another supervisor determined that Myers’ questionnaire was an act of insubordination, causing a “mini-insurrection” which interfered with working relationships.
For example, the Court observed that the question on Myers’ questionnaire about co-workers’ level of confidence in supervisors carried the clear potential for undermining office relations. Also, the fact that Myers exercised her rights to speech at the office supported the District Attorney’s fears that her speech endangered the function of his office. And the fact that the questionnaire emerged immediately after a dispute between Myers and the District Attorney and his deputies, required that “additional weight be given to [the District Attorney’s] view that [Myers] threatened his authority to run the office. Id. at 152-53.
However, the Court cautioned that “a stronger showing [by the government] may be necessary if the employee’s speech more substantially involved matters of public concern.” Id. at 152.
Analysis
In sum, Connick analyzed the Pickering balancing test for determining whether a public employee’s speech is entitled to First Amendment protection. This test requires a balancing between the interests of a government employee to speak as a citizen on matters of public concern, and the interests of the government, as an employer, to promote the efficiency of the operations it performs through its employees. Applying this test in Connick, the Court held that the First Amendment did not protect Myers from discharge for distributing a questionnaire to coworkers about office policies, confidence in their supervisors, and whether the employees felt pressure to work on political campaigns.
Significantly, the Court found that Myers’ questionnaire “touched upon matters of public concern in only a most limited sense; her survey, in [the Court’s] view, [was] most accurately characterized as an employee grievance concerning internal office policy.” Id. at 154. As noted above, the Court observed that “a stronger showing [by the government] may be necessary if the employee’s speech more substantially involved matters of public concern.” Id. at 152.
The Court concluded with guidance about the importance of Pickering’s First Amendment principles more generally:
[T]he First Amendment’s primary aim is the full protection of speech upon issues of public concern, as well as the practical realities involved in the administration of a government office. Although today the balance is struck for the government, this is no defeat for the First Amendment. For it would indeed be a Pyrrhic victory for the great principles of free expression if the Amendment’s safeguarding of a public employee’s right, as a citizen, to participate in discussions concerning public affairs were confused with the attempt to constitutionalize the employee grievance that we see presented here.
Id. at 154. This language suggests that under the Pickering analysis employee speech concerning public affairs may be entitled to greater First Amendment protection than grievances concerning internal office policies.
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