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. 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.”]