Matters of Public Concern Standard in Free Speech Cases

The public concern standard has operated primarily in two categories of free-speech cases: those involving speech by government employees and those involving defamation. In both, the public concern standard limits the constitutional protection of speech. The Supreme Court has held that government employee speech must relate to a matter of public concern to be protected from retaliation by employers (Pickering v. Board of Education, 391 U.S. 563, 1968).

If speech meets this threshold test of public concern, a Balancing Test is applied. If the interests of the employer in providing efficient government outweigh the employee’s speech interests, the employer can discipline the employee based on the speech. In defamation cases, the Court held in Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749 (1985), that the First Amendment is not implicated when the plaintiff claiming defamation is not a public figure and the allegedly defamatory speech does not relate to a matter of public concern. Accordingly, the plaintiff need not prove actual malice to obtain damages under state law.

Determining when speech is a matter of public concern has not proved to be an easy task. In Connick v. Myers, 461 U.S. 138 (1983), the Court indicated that matters of public concern are those of ‘‘political, social or other concern to the community.’’ The content, form, and context of the speech will determine whether it is protected, with content the most important factor. The manner, time, and place of delivery are encompassed within this test. The speaker’s motive alone does not determine whether speech is protected, but may be a relevant factor.

The standard has been applied most frequently in employee speech cases. In Connick, the Court concluded that speech that relates to an employee’s personal grievance does not rise to the level of public concern, even if it raises questions about the efficient functioning of the government, for every employee complaint is not a constitutional matter. But in Rankin v. McPherson, 483 U.S. 378 (1987), the employee’s statement to a coworker about the attempted assassination of President Reagan that ‘‘if they go for him again, I hope they get him’’ met the threshold. The Court noted that the statement was in the context of a discussion on the president’s policies and just after the attempt on his life. Additionally, the Court indicated in Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979), that discrimination is inherently a matter of public concern.

In the October 2005 term, in Garcetti v. Ceballos (361 F.3d. 1168, 9th Cir. 2004, cert. granted, 125 S. Ct. 1395, 2005), the Court considered whether an employee’s speech in the course of his job duties is protected when it deals with a matter of public concern. The employer is arguing that such speech is not protected; instead, the protection only inheres in citizen speech by a government employee. If this argument prevails, some employee speech designed to bring governmental wrongdoing to public light will lose protection. Regardless of the outcome, the decision in this case will provide further guidance to the lower courts, employers, and employees in determining what is protected employee speech and it may modify the public concern requirement in government employee speech cases.

ANN C. HODGES

References and Further Reading

• Deskbook Encyclopedia of Public Employment Law. Malvern, PA: Center for Education and Employment Law, 2005.
• Estlund, Cynthia Y., Speech on Matters of Public Concern: The Perils of an Emerging First Amendment Category, George Washington Law Review 59 (1990): 1.
• Smolla, Rodney A. Smolla and Nimmer on Freedom of Speech, vol. 2. Eagan, MN: Thomson/West, 2005.

Cases and Statutes Cited

• Connick v. Myers, 461 U.S. 138 (1983)
• Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749 (1985)
• Garcetti v. Ceballos, 361 F.3d. 1168 (9th Cir. 2004), cert. granted, 125 S. Ct. 1395 (2005)
• Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979)
• Pickering v. Board of Education, 391 U.S. 563 (1968)
• Rankin v. McPherson, 483 U.S. 378 (1987)

See also Defamation and Free Speech; Disciplining Public Employees for Expressive Activity; Pickering v. Board of Education, 391 U.S. 563 (1968); Rankin v. McPherson, 483 U.S. 378 (1987); Speech of Government Employees