Pickering

Public school teacher writes letter to the editor of local newspaper critical of School Board’s handling of school tax revenues.

He was fired because the Board concluded that the publication of the letter was "detrimental to the efficient operation and administration of the schools of the district."

First question—suppose a citizen had written the same letter criticizing the School Board—does the First Amendment protect this kind of expression from state laws restricting this kind of speech?

Do citizens waive their First Amendment rights when they go to work for the government?

Justice Holmes once said: “A policeman may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”  What does he mean by this?

So we could have a categorical rule one way or the other—full speech rights or zero speech rights for public employees. But that is not the way the Court chooses to go. What is the Court’s approach to this issue? Page 2:

“To the extent that the Illinois Supreme Court's opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court. E. g., Keyishian v. Board of Regents, 385 U.S. 589 (1967). "The theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected." At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon 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.”

 This is the so-called “Pickering balancing test.” Like most balancing tests, it results in a certain amount of unpredictability (Scalia once criticized a similar balancing test by saying it is like trying to decide whether a particular rock is heavier than a particular string is long.)

 Contrast government-as-sovereign with government-as-employer—the government-as-employer has an interest in efficient operation of the workplace that must be balanced against the free speech rights of its employees to speak about issues of public concern as citizens in a free society.

 Here there was no showing that the letter to the editor “impeded the teacher's proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.” (p. 3)

Efficiency vs. conformity—coercion in the Leviathan state may take the form of withholding employment from those who critical of government policy or government officials.