Connick v. Myers

When the government acts as an employer it may regulate speech more extensively than it could when acting as a regulator.

When government restricts speech as an employer, the Court applies a two-part test: 

 First, if the employee speech deals with a matter of “public concern” upon which “free and open debate is vital to informed decision-making by the electorate,” the Court applies a balancing test – the State bears the burden of demonstrating that its interest in promoting workplace efficiency outweighs the First Amendment interest in open debate.  [“In performing the balancing, the statement will not be considered in a vacuum:  the manner, time, and place of the employee’s expression are relevant, as is the context in which the dispute arose.”  Rankin, 483 U.S. at 388].

Second, when a government employee speaks “not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances” the courts will not review a personnel decision. 

See opinion at p.2 (Roman Numeral II):

 "Pickering, its antecedents, and its progeny lead us to conclude that if Myers' questionnaire cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge. When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Perhaps the government employer's dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable."

Was Myers' Free Speech claim an attempt to "constitutionalize the employee grievance" process? 

See Roman Numeral III: 

"Myers' questionnaire touched upon matters of public concern in only a most limited sense; her survey, in our view, is most accurately characterized as an employee grievance concerning internal office policy. The limited First Amendment interest involved here does not require that Connick tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships. Myers' discharge therefore did not offend the First Amendment...."

 Suppose an office clerk makes a mildly sexist joke in the office break room? If he is discharged when a female co-worker complains to HR, does he have first amendment rights?

 Should government employers be allowed to ban workplace speech that offends co-workers?

 [Charles Sykes: “Once feelings are established as the barometer of acceptable behavior . . . speech and thought are only as free as the most hypersensitive group on campus will permit.”]