Pickering Plus Thirty Years: Public Employees and Free Speech
This article examines the free speech rights of public employees based on cases that the United States Supreme Court decided during the past three decades. These cases present substantive, procedural, and evidentiary issues that have divided the Court and have created uncertainty for litigants and lower courts. This uncertainty is primarily due to the Court's requirement that individual speech rights be accommodated to competing government interests through a case-by-case judicial balancing process. In sum, this article centers on court decisions about public employees who were fired from their government jobs and who challenged their terminations on the basis of the First Amendment right to free speech in the written or spoken form. Although public employees may be terminated at will, the Supreme Court has held, time and again, that government entities " 'may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech,' even if that person has no entitlement to the benefit." Therefore, when a public employee proves in court that the government terminated employment because of his or her speech, the government employer has violated the employee's first amendment speech rights if, but only if, the speech is protected by application of the Supreme Court's public employee-free speech cases reviewed in this article.