1. Determine if the speech involved an issue of public concern. To determine this, it is necessary to look at the “content, form, and context” of a given statement (note that this test comes from Dun & Bradstreet) and whether or not it involves “any matter of political, social, or other concern to the community.” If under this test the speech did not deal with an issue of “public concern,” then Connick holds that Pickering does not apply and the speech can be prohibited.
If any part of the speech (i.e., a portion of a letter) did involve
an issue of public concern, then go to the next question. 2. Determine what the forum of expression was:
a. Public forum (i.e., a newspaper article or park): Pickering
holds that speech made in a public forum that involves an issue of
public concern requires that the Pickering balancing test be used.
“The interests of the [government employee], as a citizen, in
commenting upon matters of public concern balanced against the
interest of the State, as an employer, in promoting the efficiency of
the public services it performs through its employees.” If the government employer’s interest outweighs the employee’s, then the employee’s speech can be prohibited and he can be properly fired, even his speech is true. As part of this balancing, the court considers factors such as: how much the employee’s speech disrupted the efficiency of the workplace, whether the employee had access to “inside info.” that affected his speech, etc.
b. Private forum (i.e., a letter to the employer, a questionnaire circulated in the office, etc.): Givhan holds that in this situation, the Pickering balancing test (quoted above) will still apply even though the forum was private. If the government employer’s interest outweighs the employee’s, then the employee’s speech can be prohibited and he can be properly fired, even his
speech is true.
If the answer is that the government employer’s interest in
efficiency outweighs the employee’s, then go to #3 to see if he might
be able to attain dams for defamation. If the answer is that the
employer’s interest does not outweigh the employee’s, then go to #3
to see if the employee can still be fired and held liable for dams.
3. Was any of employee’s statements dealing with an issue of
public concern false? Pickering held that the NY Times “actual malice”
standard would apply here. If this standard is met, then P can be
fired and held liable for dams, but if it is not, then he cannot be.
Go to #4, BUT ONLY IF IT APPLIES.
4. Mixed Motives and Mt. Healthy: This step only applies when
there are mixed motives in P’s being fired—that is, when there are
speech and non-speech reasons for P’s being terminated. If mixed
motives are involved, begin with the Mt. Healthy test. This test is:
P must show that his constitutionally-protected speech was a
“substantial factor” in his being terminated, and then the District
Court must determine whether the Board had shown by a preponderance
of the evidence that it would have reached the same decision as to
P’s termination even in the absence of the protected First Am.
conduct. If P’s speech was a “substantial factor” in his
termination, then apply Pickering (or whatever test applies) to see
if the employee could have still been fired.
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