Connick v. Myers:
NARROWING THE SCOPE OF PROTECTED
SPEECH FOR PUBLIC EMPLOYEES
I.
INTRODUCTION
The first amendment' must not be read literally. Though
drafted in sweeping terms, most jurists and legal scholars agree
that an absolutist interpretation is impractical and therefore undesirable.' The free speech clause poses a dilemma in this regard
because of the longstanding notion that it advances the important societal and governmental goal of "the discovery and spread
of truth on subjects of general concern." 3 Because the right to
free speech cannot be absolute,4 it must of necessity be defined
in terms of degree.6 For purposes of judicial analysis, the Supreme Court has generally accorded great weight to the content
and context of a given exercise of speech in determining the degree to which it is protected under the first amendment.6
1. The first amendment provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and to petition
the government for a redress of grievances." U.S. CONST. amend. I.
2. See, e.g., Emerson, Toward a General Theory of the First Amendment, 72 YALE
L.J. 877, 914-16 (1963) (explaining the undeveloped state of the absolutist doctrine by
noting that its proponents have never commanded a majority of the Supreme Court).
See also Roth v. United States, 354 U.S. 476, 483 (1957) (unconditional phrasing of the
first amendment not intended to protect every utterance).
3. Z. CHASE, JR., FREE SPEECH IN THE UNITED STATES 31 (1967).
4. An unrestricted first amendment right to free speech cannot be equitably reconciled with various other individual interests, including the freedom from damage to one's
reputation, freedom from prejudicial communications in the administration of justice,
and the right to privacy. Emerson, supra note 2, at 922-28.
5. Emerson notes that the courts are particularly well suited for this task, especially in terms of "protecting the mechanisms of the democratic process." Id. at 897. He
cites as reasons for this "the independence of the judiciary from the other branches of
government, its relative immunization from immediate political and popular pressures,
the training and quality of its personnel, its utilization of legal procedures, and its powers of judicial review." Id.
6. See generally FCC v. Pacifica Found., 438 U.S. 726 (1978) (FCC has the authority to review completed broadcasts and to sanction licensees who engage in broadcasting
of obscene material); Young v. American Mini Theatres, 427 U.S. 50 (1976) (zoning ordinance regulating location of adult theater does not violate free expression); New York
Times Co. v. Sullivan, 376 U.S. 254 (1964) (first amendment prevents an award of damages to a public official for defamatory statement concerning his official conduct unless
such statement was made with knowledge of its falsity or with reckless disregard as to
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The framers of the first amendment could not have foreseen
the formidable issues that would be generated by the unique relationship between the government and its employees. Public
employees may be distinguished from their private counterparts
on the basis of two opposing interests which permeate the government-public employee relationship. Employees who work
within the public sector are considerably more in touch with the
internal mechanisms of the government, and are thus more
likely to render informed comment on governmental functions.,
Conversely, the government has a legitimate interest in restricting the speech of its employees where such speech disrupts the
efficient administration of governmental services.8
Ascertaining the scope of protected speech to be afforded
public employees has proved to be complex, necessitating a case
by case balancing of interests.9 The Supreme Court has added
uncertainty to complexity by its decision in the case of Connick
v. Myers. 10 In Connick, the Court upheld the discharge of an
assistant district attorney who was fired for soliciting the views
of her co-workers on matters of office policy through an intraoffice questionnaire." The decision effectively narrowed the
scope of constitutionally protected speech for all public
employees.
This Comment will include a review of the evolution of public employee free speech rights, followed by a discussion of the
Connick opinion. The decision will be evaluated in light of existing case law, and it will be contended that the Court misapplied leading precedent in reaching its conclusion. Finally, the
whether it was true or false); Roth v. United States, 354 U.S. 476 (1957) (law which
prohibits the mailing of obscene material does not violate the first amendment).
7. See Pickering v. Board of Educ., 391 U.S. 563 (1968), where the Court observed
that "[tleachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools
should be spent." Id. at 572.
8. The Pickering Court noted that the government has interests in regulating the
speech of its employees which "differ significantly" from its interests in regulating the
speech of the general populace. Pickering, 391 U.S. at 568. See Arnett v. Kennedy, 416
U.S. 134, 162 (1974) (construing as grounds for removal of a public employee under the
Lloyd-LaFollette Act "that public speech which improperly damages and impairs the
reputation and efficiency of the employing agency.").
9. Rosenbloom & Gile, The Current ConstitutionalApproach to Public Employment, 23 KANS. L. R v.249, 249 (1975).
10. 103 S. Ct. 1684 (1983).
11. Id. at 1687.
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PUBLIC EMPLOYEES
consequences of the decision will be explored, particularly in
terms of the adverse impact it can be expected to have on the
first amendment status of public employees.
II. BACKGROUND
Writing for the Supreme Judicial Court of Massachusetts in
1892, Justice Holmes stated that "[t]he petitioner may have a
constitutional right to talk politics, but he has no constitutional
right to be a policeman.' 1 2 This classic epigram, which prevailed
for several decades, personifies the narrow view taken by courts
and legislatures with respect to public employees. The philosophy underlying the Holmes formulation turned upon the traditional perception of public employment as a privilege, not as a
right."3 This distinction is important, as it vested in the government employer the power to condition employment upon the
surrender of certain constitutionally secured safeguards and
4
freedoms.'
12. McAuliffe v. City of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892).
The court upheld the constitutionality of a rule prohibiting members of a police force
from soliciting money for political purposes, and from becoming members of a political
committee.
Holmes further stated:
There are few employments for hire in which the servant does not agree to
suspend his constitutional rights of free speech as well as of idleness by the
implied terms of his contract. The servant cannot complain, as he takes the
employment on the terms which are offered him. On the same principle the
city may impose any reasonable condition upon holding offices within its control. This condition seems to us reasonable....
Id. at 220, 29 N.E. at 517-18.
For a comprehensive analysis of Justice Holmes' treatment of the first amendment,
see A. MEIKLEJOHN, POLriCAL FREEDoM pt. 1 (1960).
Compare Justice Holmes' statement with the Court's conclusion in Garrity v. New
Jersey, 385 U.S. 493 (1967), that "policemen, like teachers and lawyers, are not relegated
to a watered-down version of constitutional rights." Id. at 500.
13. See Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950), aff'd per curiam, 341
U.S. 918 (1951) (equally divided Court), in which the court stated that "there is no basic
right to government employ, any more than there is to employment by any other particular employer." Id. at 60.
14. See, e.g., Bailey, 182 F.2d at 57 (due process clause does not apply to government administrative employees); United Pub. Workers v. Mitchell, 330 U.S. 75 (1947)
(upholding the Hatch Act, which forbids employees in the executive branch of the federal government from engaging in partisan political activities).
The extent to which the government was free to set conditions on employment is
best illustrated by the following standard provided by the Court in 1947: "For regulation
of employees it is not necessary that the act regulated be anything more than an act
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In 1952, the Supreme Court echoed the themes articulated
by Justice Holmes sixty years prior by asserting that while people may assemble, speak, think and believe as they choose, "[iut
is equally clear that they have no right to work for the State...
on their own terms."' 5 Nine months later, however, in an apparent effort to qualify its position, the Court stated, "[t]o draw
from this language the facile generalization that there is no constitutionally protected right to public employment is to obscure
the issue."' 6 This statement suggested a willingness on the part
of the Court to move away from the Holmes formulation and its
doctrinaire application. Subsequent decisions, however, are replete with indications that the government as an employer still
retained virtually
unfettered discretion to set the terms of
7
employment.
reasonably deemed by Congress to interfere with the efficiency of the public service." Id.
at 101.
15. Adler v. Board of Educ., 342 U.S. 485, 492 (1952). At issue in Adler was the
constitutionality of New York's Feinberg Law, which effectively precluded from state
employment any person advocating, or belonging to organizations advocating the forceful
or violent overthrow of the government. The petitioner, a public school teacher, contested the constitutionality of the law on the ground that it infringed upon the free
speech and assembly rights of public employees and those seeking such employment. Id.
at 491-92. In upholding the law, the Court emphasized that the only limitation placed on
an individual was with respect to his freedom to choose between membership in a subversive organization and employment in the school system. Id. at 493. However, Justice
Douglas, in his dissent, pointed to the inherent weakness of the majority's reasoning by
noting, "[w]here suspicion fills the air and holds scholars in line for fear of their jobs,
there can be no exercise of the free intellect." Id. at 510.
16. Wieman v. Updegraff, 344 U.S. 183, 191 (1952). This case involved an Oklahoma statute conditioning employment by the state upon the taking of a loyalty oath.
Though similar on its facts to the Adler case, the Court reached a contrary conclusion.
The Court reversed a lower court ruling upholding the statute on the ground that the
oath requirement indiscriminately classified potentially innocent persons, who had been
members of subversive organizations in ignorance of such organizations' true purposes,
with those who had joined knowingly. The oath requirement therefore offended due process as an arbitrary assertion of power. Id. at 190-91. However, despite the favorable
implications raised by the Wieman ruling, the Court was reluctant to pass upon the
merits of the right-privilege distinction, holding merely that "constitutional protection
does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory." Id. at 192.
17. See, e.g., Nelson v. County of Los Angeles, 362 U.S. 1 (1960) (public employee
who failed to answer questions about subversive activity before House Un-American Activities Committee properly terminated on ground of insubordination); Lerner v. Casey,
357 U.S. 468 (1958) (public employee's dismissal for failure to respond to inquiries as to
his membership in the Communist Party did not offend the Constitution where such
employee failed to pursue administrative remedies); Beilan v. Board of Educ., 357 U.S.
399 (1958) (public school teacher's failure to answer questions posed by school superin-
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Changes in the composition of the Court in the 1960s' 5 led
to a considerable broadening of rights for public employees
under the first amendment. 19 The Court expressly rejected its
former position,20 and in so doing, broke new ground in the area
of public employee first amendment rights. But the abandonment of the right-privilege distinction so adamantly adhered to
for over half a century left the Court without a discernible standard for resolving the issue.
The Court attempted to fill this void in the case of Pickering v. Board of Education.2 Pickering was an Illinois public
tendent relating to communist affiliations constituted unfitness and incompetency, and
discharge on these grounds did not violate the due process clause of the fourteenth
amendment). Cf. Slochower v. Board of Educ., 350 U.S. 551 (1956). There the Court
upheld a college professor's right to invoke the fifth amendment privilege against self
incrimination in the course of a congressional committee investigation of subversive activities. The Court, however, cautioned:
This is not to say that Slochower has a constitutional right to be an associate
professor of German at Brooklyn College. The State has broad powers in the
selection and discharge of its employees, and it may be that proper inquiry
would show Slochower's continued employment to be inconsistent with a real
interest of the State.
Id. at 559. See generally Note, Nonpartisan Speech in the Police Department: The Aftermath of Pickering, 7 HASTINGS CONST. L.Q. 1001 (1980) [hereinafter cited as Nonpartisan Speech], wherein it is noted that the distinction between Slochower and Beilan is
"one of form, not of substance." Id. at 1007 n.42.
18. See Nonpartisan Speech, supra note 17, at 1007.
19. The following cases illustrate the chronological evolution of public employee
rights under the first amendment. See, e.g., Shelton v. Tucker, 364 U.S. 479 (1960) (statute requiring public school teachers to annually file affidavit listing their every organizational affiliation held violative of freedom of association, a right closely allied to freedom
of speech); Torcaso v. Watkins, 367 U.S. 488 (1961) (state constitutional provision requiring declaration of belief in God as qualification for public office unconstitutionally
invaded first amendment guarantee of freedom of belief and religion); Baggett v. Bullitt,
377 U.S. 360 (1964) (state may not condition employment upon the taking of loyalty
oath that is unduly broad, particularly where the exercise of first amendment freedoms
may be deterred); Elfbrandt v. Russell, 384 U.S. 11 (1966) (statute requiring state employees to subscribe to a loyalty oath violated first amendment right to freedom of association where such statute conclusively presumed that members of subversive organizations share in such organizations' unlawful aims); Keyishian v. Board of Regents, 385
U.S. 589 (1967) (statutory loyalty oath requirement proscribing mere knowing membership without showing of specific intent to further unlawful aims of Communist Party
held violative of the first amendment).
20. In Keyishian v. Board of Regents, 385 U.S. 589 (1967), the Court discredited
the Adler decision by stating, "to the extent that Adler sustained the provision of the
Feinberg Law constituting membership in an organization advocating forceful overthrow
of government a ground for disqualification, pertinent constitutional doctrines have since
rejected the premises upon which that conclusion rests." Keyishian, 385 U.S. at 595.
21. 391 U.S. 563 (1968).
.342
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high school teacher who had been dismissed from his position by
the board of education for sending a letter to a local newspaper
criticizing the proposed allocation of the school's financial resources. 22 The Supreme Court held the letter to be protected
speech under the first amendment,
thereby reversing the ruling
2
of the Illinois Supreme Court.
Central to the Court's conclusion was the acknowledged distinction between the government's interest in regulating the
speech of its employees and that of the general citizenry.24 In an
effort to resolve the competing interests of the government and
the public employee with respect to the free speech clause of the
first amendment, the Court set forth the following test: "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."2 5 Although the Court was reluctant to
enhance the test with specific guidelines,26 it did spell out a
number of elements to be considered in its analysis and application.27 These elements focus in large part upon the employee's
22. Id. at 564. His dismissal followed a full hearing by the board in which it was
decided that the subsequent publication of the letter was "'detrimental to the efficient
operation and administration of the schools of the district.'" Id. Moreover, the board
charged that numerous statements in the letter were false, further disparaging the general reputation of the board. Id. at 566-67. These charges were substantiated by the testimony of various witnesses at the hearing. Id. at 567.
23. The Court noted that the grounds upon which the Illinois Supreme Court denied Pickering's claim for relief were not altogether clear. Id. In any event, the Court
cited the Weiman line of cases, see supra notes 16 & 19, to establish the proposition that
"the theory that public employment which may be denied altogether may be subjected to
any conditions, regardless of how unreasonable, has been uniformly rejected." Pickering,
391 U.S. at 568 (quoting Keyishian v. Board of Regents, 385 U.S. 589, 605-06 (1967)).
24. Pickering, 391 U.S. at 568.
25. Id.
26. This may be attributed to the Court's anticipation of a broad range of circumstances in which an employee's statements might precipitate his or her dismissal. Id. at
569.
27. These conditions include: (1) whether the statements are directed towards any
person with whom the employee would normally be in contact in the course of his daily
work; (2) whether the employee's immediate supervisors must maintain employee discipline or harmony among co-workers; (3) the extent to which the employees's personal
loyalty to and confidence in his superiors are necessary to the proper functioning of the
relationship between them; (4) the extent to which the statements, if false, would be
difficult to counter because of the employee's presumed greater access to the real facts;
(5) whether the object of the statement could easily rebut them if they are erroneous; (6)
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relationship with his co-workers, employer, and the hiring institution.
Justice Marshall was clearly mindful of the sweeping implications the decision would have for public employees.2 8 Although
Pickering arose in the context of a public forum,2 9 the balancing
whether the statements impede the employee's proper performance of his daily duties;
(7) whether the statements interfere with the regular operation of the involved institution; (8) whether the nature of the employee's job calls for confidentiality; and (9)
whether the matters commented upon are of legitimate public concern. Id. at 569-73.
28. The balancing test formulation has elevated Pickering to the seminal case on
the issue of first amendment rights of public employees. In addition to this test, another
significant rule emerged from the case in connection with those statements in the letter
found to be erroneous. The Court held that where the fact of employment is only "tangentially and insubstantially involved in the subject matter of the public communication
made by a teacher," it is necessary to regard the teacher as a member of the general
public. Id. at 574. As a member of the general public, Mr. Pickering was therefore held
to the "actual malice" standard governing defamatory statements directed at public officials. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court defined "actual
malice" as a statement made "with knowledge that it was false or with reckless disregard
of whether it was false or not." Id. at 280.
The Pickering Court expressly reserved judgment as to the first amendment ramifications if a public employee's statements were of such a degree as to cross the "actual
malice" threshold. Pickering, 391 U.S. at 574 n.6. Justice White, dissenting in part, asserted that this question was well settled under Garrison v. Louisiana, 379 U.S. 64
(1964), which held that false statements made knowingly or with reckless disregard of
the truth do not enjoy constitutional protection. Pickering, 391 U.S. at 582-84 (citing
Garrison, 379 U.S. at 75).
29. The nature of the place where the right to free speech is exercised is fundamental to an analysis of the government's power to regulate this first amendment freedom.
This analysis often takes the form of a continuum on which the "public forum" represents the highest free speech priority. L. TRma, AMERIcAN CONsTrrtrlONAL LAW § 12-21
(1978).
The concept that the first amendment provides for a guaranteed right of access to
public places, subject to reasonable regulation, gained initial validity in the case of
Hague v. C.I.O., 307 U.S. 496 (1939). In Hague, the court struck down a city ordinance
which prohibited individuals from distributing literature on city streets without first securing a permit from the licensing official. In a famous dictum, Justice Roberts stated:
Wherever the title of streets and parks may rest, they have immemorially been
held in trust for the use of the public and, time out of mind, have been used
for purposes of assembly, communicating thoughts between citizens, and discussing public questions. . . . The privilege of a citizen of the United States to
use the streets and parks for communication of views on national questions
may be regulated in the interest of all; it is not absolute, but relative, and must
be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.
Id. at 515-16.
The extent to which a public educational institution may be considered a public
forum remains a matter of interpretation. The prevailing view, however, is that public
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test has been applied in numerous public employee cases where
the government's interest in restricting the speech of its employees has been comparatively higher.3 0 In addition to the uniform
application of the Pickering test to the spectrum of public employment, the language and tone of the opinion suggest that the
court sought to expand the free speech rights of all public employees to a status approximating that enjoyed by the general
populace.
III.
A.
THE DECISION
Facts
Sheila Myers was employed as an assistant district attorney
for more than five years in New Orleans, serving under the petitioner, Harry Connick, the District Attorney for Orleans Parish.3 ' All of the evidence adduced at trial revealed her to be a
competent criminal trial attorney.3 2 In October of 1980, Myers
was notified that she was to be transferred to another section of
3
the criminal court.3 3 She was strongly opposed to the transfer, '
schools are "created not primarily for public interchange but for purposes closely linked
to expression," and thus have been accorded a status more aptly described as "semipublic forums." L. TIBE, AMERICAN CONSTrrrUIONAL LAW § 12-21 (1978). The government may thus place restrictions on speech which are consistent with the traditional role
of the educational institution. Id.
The last forum on the free speech continuum is the government institution which
administers public services but is not involved with speech-related functions. This category includes such institutions as hospitals, welfare departments, and military installations. Id. See also NonpartisanSpeech, supra note 17, at 1011 ("The extent of a police
officer's right to comment freely about his or her employment ... is much less than that
of a teacher but more than that of a soldier.").
In Grayned v. City of Rockford, 408 U.S. 104 (1972), the Court indicated that the
reasonableness of a "time, place and manner" restriction on speech will be determined
by the nature of the place where the speech is exercised. Id. at 116. "The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." Id. The Grayned analysis is consistent
with the Pickering balancing test at least insofar as both require the courts to consider
the place in which the speech occurs. It should be emphasized, however, that the Pickering test goes further by calling for an inquiry into the actual content of the speech.
30. See, e.g., Smith v. United States, 502 F.2d 512 (5th Cir. 1974) (Veterans Administration hospital employee); Jannetta v. Cole, 493 F.2d 1334 (4th Cir. 1974) (fireman); Brukiewa v. Police Comm'r, 257 Md. 36, 263 A.2d 210 (1970) (police officer).
31. Connick v. Myers, 103 S. Ct. 1684, 1686 (1983).
32. Myers v. Connick, 507 F. Supp. 752, 753 (E.D. La. 1981).
33. Connick, 103 S. Ct. at 1686.
34. Myers' objection stemmed in part from conflict of interest considerations. As
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and expressed her objections to several of her supervisors, including the petitioner and Dennis Waldron, First Assistant District Attorney. In a second meeting with Waldron, during which
the two discussed various office matters, Waldron informed Myers that her general concerns regarding office policies were not
shared by her co-workers.3 5 Myers then indicated to him that
she would conduct some research on the matter. 6
On her own time, she prepared a questionnaire3 7 soliciting
the views of her fellow staff members concerning various aspects
of office policy.38 The following morning, Myers met again with
Connick to discuss the proposed transfer, at which time she inexplained in the district court opinion, Myers had participated in a probation program
for young first offenders at the request of a Judge Israel Augustine. The proposed transfer would have given rise to a situation whereby Myers would be called upon to prosecute the same individuals she was counselling under Judge Augustine's program. Myers,
507 F. Supp. at 753.
35. Connick, 103 S. Ct. at 1686.
36. Id.
37. The questions were as follows:
1. How long have you been in the Office?
2. Were you moved as a result of the recent transfer?
3. Were the transfers as they effected [sic] you discussed with you by
any superior prior to the notice of them being posted?
4. Do you think as a matter of policy, they should have been?
5. From you experience, do you feel office procedure regarding transfers has been fair?
6. Do you believe there is a rumor mill active in the office?
7. If so, how do you think it effects [sic] overall working performance
of A.D.A. personnel?
8. If so, how do you think it effects [sic] office morale?
9. Do you generally first learn of office changes and developments
through rumor?
10. Do you have confidence in and would you rely on the words of:
Bridget Bane
Fred Harper
Lindsay Larson
Joe Meyer
Dennis Waldron
11. Do you ever feel pressured to work in political campaigns on behalf
of office supported candidates?
12. Do you feel a grievance committee would be a worthwhile addition
to the office structure?
13. How would you rate office morale?
14. Please feel free to express any comments or feelings you have.
Id. at 1694.
38. Id. at 1687.
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dicated that she would "consider" it.39 Later in the day, Myers
distributed copies of the questionnaire to fifteen other assistant
district attorneys.40 Shortly thereafter, Waldron learned of this
and phoned Connick, who had by this time left the office, to tell
him that Myers was creating a "mini-insurrection."4' 1 Connick
returned to the office and told Myers that she was being fired
because of her refusal to accept the transfer.4
Myers brought suit in the District Court for the Eastern
District of Louisiana under 42 U.S.C. § 1983,11 arguing that she
had been wrongfully discharged for exercising her constitutionally protected right of free speech. The district court resolved by
a preponderance of the evidence that the real reason behind Myers' termination was her circulation of the questionnaire, and
not her reluctance to accept the transfer as Connick had
claimed.4 4 In light of this finding, the court then applied the
Pickering balancing test 45 and held that the issues addressed in
the questionnaire were matters of "legitimate public concern"
and were therefore protected under the first amendment.4" The
39. Id.
40. Id.
41. Id.
42. Id. He also informed her that he considered her distribution of the questionnaire to be an act of insubordination. Connick objected in particular to question number
10 of the questionnaire, which he felt disparaged the integrity of the office supervisors,
and to question number 11, which he felt would be damaging if discovered by the press.
Id.
43. Section 1983 provides in part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes
to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress ...
42 U.S.C. § 1983 (1976).
44. Myers, 507 F. Supp. at 755. The district court found that, subsequent to her
meeting with Connick in which she had informed him that she was considering the transfer, Myers called a fellow assistant district attorney, also being transferred, into her office to discuss their new caseload. Id. The court framed the issue of the motivation behind her termination in terms of a "but for" causation analysis adopted by the Supreme
Court in Mount Healthy City School Dist. v. Doyle, 429 U.S. 274, 285-87 (1977). The
analysis requires the defendant to prove by a preponderance of the evidence that he
would have discharged the employee even in the absence of her protected conduct. Id. at
287. See infra note 79.
45. See supra text accompanying note 25.
46. Connick, 103 S. Ct. at 1687.
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court further held that the interest of Connick, in his capacity as
District Attorney, in promoting the efficient administration of
public services, was neither "adversely affected" nor "substantially impeded" by the distribution of the questionnaire .
The district court ordered Myers reinstated, and awarded
backpay, damages and attorney's fees.4 Connick appealed to the
United States Court for Appeals of the Fifth Circuit, which affirmed per curiam. 4 ' The case reached the Supreme Court in
early 1982.
B.
The Opinion
1. Majority
Justice White, 50 writing for a five to four majority, opened
the opinion with a reaffirmation of the validity of the Pickering
balancing test, but went on to state that the district court had
misapplied it.51 After a brief digression tracing the evolution of
the rights of public employees under the first amendment and
culminating in a discussion of the Pickering case,62 the Court
proceeded to determine whether Myers' questionnaire constituted protected speech under the first amendment.
A considerable portion of the majority's reasoning centered
upon the nature of the speech in question. Unless Myers' questionnaire could be fairly characterized as relating to "any matter
of political, social, or other concern to the community," noted
Justice White, it was not for the Court to intrude upon the discretion of the District Attorney in managing his office. 5 3 To de47. Myers, 507 F. Supp. at 759. The court applied this portion of the Pickeringtest
as it was construed in Smith v. United States, 502 F.2d 512, 517 (5th Cir. 1974). In
Smith, the court ruled that the Veterans Administration was justified in discharging a
staff psychologist who refused to remove a peace pin. Id. at 518. The court found that
Smith's wearing of the peace pin resulted in a "material and substantial interference
with the performance of his duties," which included administering psychotherapeutic
treatment to emotionally disturbed veterans. Id. at 517.
48. Myers v. Connick, 507 F. Supp. 752, 760-61 (E.D. La. 1981).
49. Myers v. Connick, 654 F.2d 719 (5th Cir. 1981).
50. Chief Justice Burger, along with Justices Powell, Rehnquist and O'Conner,
joined concurring.
51. Connick v. Myers, 103 S. Ct. 1684, 1687 (1983).
52. Id. at 1688-89.
53. Id. at 1689-90. Among the authorities cited for this proposition was Bishop v.
Wood, 426 U.S. 341 (1976), wherein Justice Stevens stated:
The federal court is not the appropriate forum in which to review the multi-
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termine whether the speech fell within the ambit of public concern, the Court examined its "content, form, and context.""
With the exception of one question, the Court held that the
questionnaire amounted to nothing more than an extension of
Myers' grievance with her superiors. 5
The majority acknowledged that question eleven" did give
rise to a matter of interest to the community "upon which it is
essential that public employees be able to speak out freely without fear of retaliatory dismissal. '" 7 However, in weighing this
protected speech against the interest of the government, the majority concluded that the district court had erroneously imposed
an "unduly onerous burden" on the petitioner by requiring him
to show that Myers' speech "substantially interfered" with the
operation of the office. 58 As the majority went on to explain, the
state's burden must be balanced in light of the nature of the
employee's expression, and therefore such burden will vary accordingly.59 Because close working relationships between assisttude of personnel decisions that are made daily by public agencies. We must
accept the harsh fact that numerous individual mistakes are inevitable in the
day-to-day administration of our affairs. The United States Constitution cannot feasibly be construed to require federal judicial review for every such error.
In the absence of any claim that the public employer was motivated by a desire
to curtail or to penalize the exercise of an employee's constitutionally protected rights, we must presume that official action was regular and, if erroneous, can best be corrected in other ways ...
Id. at 349-50. Justice White dissented on other grounds. Id. at 355.
54. Connick, 103 S. Ct. at 1690.
55. Id. The Court noted that Myers' purpose in drafting the questionnaire was not
to inform the public that the district attorney's office was not properly discharging its
official duties or was in some way breaching the public trust. Id.
56. "Do you ever feel pressured to work in political campaigns on behalf of office
supported candidates?" Id. at 1694.
57. Id. at 1691. See Branti v. Finkel, 445 U.S. 507 (1980) (first and fourteenth
amendments prevent discharge of two assistant public defenders solely on the basis of
their affiliation with the Republican Party); Elrod v. Burns, 427 U.S. 347 (1976) (noncivil-service employees who were dismissed for the sole reason that they were neither
affiliated with nor sponsored by the Democratic Party were entitled to preliminary injunctive relief). But see Civil Serv. Comm'n v. Letter Carriers, 413 U.S. 548 (1973) (federal service should depend upon meritorious performance rather than political influence
of federal employees on others and on the electoral process, which should be limited);
United Pub. Workers v. Mitchell, 330 U.S. 75 (1947) (Congress may regulate, within reasonable limits, the political conduct of federal employees in order to promote efficiency
and integrity in the public service).
58. Connick v. Myers, 103 S. Ct. 1684, 1691 (1983). See supra note 47 and accompanying text.
59. Connick, 103 S. Ct. at 1691-92.
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PUBLIC EMPLOYEES
ants and their superiors were essential to the efficient operation
of the district attorney's office, the majority determined, Connick's judgment must be accorded great deference for purposes
of establishing whether the relationship had been disrupted. 0
The majority augmented its position with the assertion that the
employer need not wait until such disruption manifestly destroys the working environment before taking action.6
The majority next considered the "manner, time, and
place"6 2 in which the questionnaire was distributed.6e It concluded that, because Myers exercised her rights to speech at the
office, Connick's fears that the functioning of his office would be
disrupted were all the more reasonable."
The majority opinion concluded by stating that "it would
indeed be a Pyrrhic victory for the great principles of free expression if the Amendment's safeguarding of a public employee's
right, as a citizen, to participate in discussions concerning public
affairs were confused with the attempt to constitutionalize the
employee grievance that we see presented here.""
2.
Dissent
In a carefully reasoned dissent, Justice Brennan 6 refuted
60. Id. at 1692.
61. Id. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 103 S. Ct. 948
(1983), where the Court held that proof of future disruption was not necessary to justify
denial of access to a non-public forum on the ground that the proposed use may be
contrary to the intended function of the property. See also Connecticut State Fed'n of
Teachers v. Board of Educ., 538 F.2d 471 (2d Cir. 1976), in which the court determined
that a school administration must rely on "reasonable inferences drawn from concrete
facts" in trying to show that a material interference with school discipline would result
unless its policies were upheld, even though such policies infringed on the teachers' first
amendment rights. Id. at 748.
62. Connick, 103 S. Ct. at 1693. Note that this wording is not to be confused with
the phrase "time, place and manner," which is discussed supra at note 29.
63. The Court cited Givhan v. Western Line Consol. School Dist., 439 U.S. 410
(1979), wherein it was stated:
Private expression ... may in some situations bring additional factors to the
Pickering calculus. When a government employee personally confronts his immediate superior, the employing agency's institutional efficiency may be
threatened not only by the content of the employee's message but also by the
manner, time, and place in which it is delivered.
Id. at 415 n.4 (cited in Connick, 103 S. Ct. at 1693).
64. Connick, 103 S. Ct. at 1693.
65. Id. at 1694.
66. Justices Marshall, Blackmun and Stevens joined, dissenting.
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the majority's conclusion that Myers' questionnaire did not relate to matters of public concern.67 He also stated his opposition
to the finding that the operation of the district attorney's office
was adversely affected by the incident. 8
Justice Brennan prefaced his analysis by asserting that the
majority incorrectly applied the Pickering balancing test to the
facts as established in the district court."9 Subjects of public
concern, argued Justice Brennan, embrace statements relating to
how our society is to be governed. This holds true without regard to the place or reason the statement was made, or whether
the statement rises to the level of public controversy.7 0 In applying the principles of defamation law, Justice Brennan observed
that "[t]he constitutionally protected right to speak out on governmental affairs would be meaningless if it did not extend to
'7 1
statements expressing criticism of governmental officials.
Justice Brennan's argument also drew upon the reasoning
employed in Pickering,where the Court recognized that teachers
were most likely to have informed opinions on matters involving
the operation of schools, and therefore it was essential that their
67. Justice Brennan believed this to be contrary to the well settled notion that the
central purpose of the first amendment was the protection of speech concerning "'the
manner in which government is operated or should be operated."' Id. at 1695 (quoting
Mills v. Alabama, 384 U.S. 214, 218 (1966)).
68. Connick, 103 S. Ct. at 1695.
69. Id. at 1695-96. The dissent cited three flaws in the majority's analysis: (1) The
context in which the communication was made was improperly considered on both sides
of the balance, id.; (2) the range of subjects on which public employees may speak out
without fear of retaliatory dismissal was impermissibly narrowed, id. at 1696; and (3) the
unconstitutionality of dismissing a public employee where at least one aspect of her
speech constituted a matter of public concern in the absence of evidence that such
speech disrupted the efficiency of the office, id.
70. Here Justice Brennan reinforced his contention that the questionnaire related
to matters of public concern by citing in a footnote to various newspaper articles appearing in The Times Picayune/The States Item describing the questionnaire and the events
leading to Myers' dismissal. He further speculated that, in light of the media attention
the incident was attracting, "Myers' comments concerning morale and working conditions in the office would actually have engaged the public's attention had she stated
them publicly." Id. at 1697 n.2.
71. Id. at 1698. Under the New York Times standard, a public official may not be
awarded damages for criticism of his official conduct unless the false statements were
made with "actual malice." New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).
See supra note 28. In New York Times Co., the Court recognized "that debate on public
issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times Co., 376 U.S. at 270.
19841
PUBLIC EMPLOYEES
speech on such matters be accorded first amendment protection.12 Moreover, stated Justice Brennan, "the First Amendment
protects the dissemination of such information so that the people, not the courts, may evaluate its usefulness.""
The last issue Justice Brennan discussed related to the majority's holding that an employer need not wait until the working environment is ruined before taking action against the
source of the disruption.7 4 He countered the Court's conclusion
by citing to Tinker v. Des Moines Independent Community
School District,75 in which the Court stated that "in our system,
undifferentiated fear or apprehension of disturbance is not
enough to overcome the right to freedom of expression." 6 The
dissent concluded with an endorsement of the district court's
conclusions of law, as well as an unsettling prediction that the
Court's decision will inevitably inhibit the flow of valuable information by which the public assesses the performance of elected
officials."
IV.
A.
ANALYSIS
Can Connick and Pickering Be Reconciled?
The balancing test approach, as pursued by the Pickering
Court, has prompted considerable criticism from various sectors
of the legal community.7 8 These criticisms, relating mostly to the
72. Connick, 103 S. Ct. at 1698 (citing Pickering v Board of Educ., 391 U.S. 563,
572 (1968)). The Pickering analogy suggests that assistant district attorneys are most
likely to have informed opinions on matters involving the operation of a district attorney's office and thus should be afforded similar protection when speaking out on such
matters.
73. Connick, 103 S. Ct. 1699.
74. See supra note 61 and accompanying text.
75. 393 U.S. 503 (1969) (cited in Connick, 103 S. Ct. at 1701). Tinker upheld the
right of students to wear black armbands on public school grounds in protest of the
Vietnam War. The Court held that, absent a showing of facts which might have reasonably led the school authorities to anticipate a substantial or material interference with
school activities, the regulation prohibiting the students from wearing the armbands was
an unconstitutional denial of the students' right of expression. Tinker, 393 U.S. at 509.
76. Tinker, 393 U.S. at 508.
77. Connick, 103 S. Ct. 1702.
78. Leading first amendment scholar Thomas Emerson has noted:
The principal difficulty with the ad hoc balancing test is that it frames the
issues in such a broad and undefined way, is in effect so unstructured, that it
can hardly be described as a rule of law at all. As a legal doctrine for affording
judicial protection to a system of freedom of expression, it is not tenable.
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discordant and unpredictable manner in which the test has been
applied, have been borne out by the decisions of subsequent
courts. 79 At best, the Connick Court has confirmed the validity
of these criticisms.
Emerson, supra note 2, at 912.
Emerson more specifically notes that (1) the lack of a concrete doctrine can lead to
inconsistent rules; (2) the judicial process is not well suited for the tedious ad hoc factual
determinations that must be made; (3) application of the test tends toward excessive
deference to the legislature because of the broad-based policy considerations involved,
thereby clouding the distinction between legislative and judicial functions; (4) the test
adds nothing to the protection of free speech over that already provided for under the
due process clause; and (5) the test fails to provide adequate notice to government officials and individuals who cannot know if their speech is protected until a court, inevitably the highest court, so determines. Id. at 913-14. See also Frantz, The First Amendment in the Balance, 71 YALE L.J. 1424, 1449 (1962) (the balancing test approach
distorts the intent of the first amendment by becoming the vehicle through which otherwise prohibited governmental action may be rationalized); Grossman, Public Employment and Free Speech: Can They Be Reconciled?, 24 AD. L. REv. 109, 115-17 (1972)
(providing a cursory survey of judicial and scholarly criticism of the balancing test). Another observer contends:
[I]n choosing what it considers the appropriate formulation of the conflict, the
Court must decide not only against what background, in terms of what social
role, the interests of the parties ought to be judged, but also what role the
Court will assign to itself in this area.. . . A court cannot consider the claims
urged upon it otherwise than as a participant in a process, and that the terms
of its deliberations will be set by the part it assigns to itself in that process.
Fried, Two Concepts of Interests: Some Reflections on the Supreme Court's Balancing
Test, 76 HAav. L. Rzv. 755, 759 (1963).
79. This is particularly true with respect to the causation analysis employed by
courts for the purpose of establishing the burden of proof to which the employer will be
held. In Parker v. Graves, 340 F. Supp. 586 (N.D. Fla. 1972), aff'd per curiam, 479 F.2d
335 (5th Cir. 1973), for example, the court held that an employer's discharge of a public
employee was unconstitutional only if the employee's protected speech was the sole reason for his termination; whereas in Hostrop v. Board of Junior College Dist. No. 515, 523
F.2d 569 (7th Cir. 1975), cert. denied, 425 U.S. 963 (1976), the discharge of a public
employee was determined to be unconstitutional even if the protected speech was only
one of the several reasons leading to the dismissal. Id. at 573. This conflict between the
circuits was not resolved until the case of Mount Healthy City School Dist. v. Doyle, 429
U.S. 274 (1977), involving a public school teacher who was discharged for various incidents of misconduct. The termination, however, directly followed a separate incident in
which Doyle conveyed to a radio station the contents of a memorandum concerning
teacher dress code and appearance policy adopted by the school, which was subsequently
broadcast as a news item. The Supreme Court agreed with the district court that the
latter conduct was protected under the first amendment, but vacated and remanded the
case for a determination of whether the school board could show by a preponderance of
the evidence that it would have reached the same conclusion even in the absence of the
protected conduct. Id. at 287. The essence of the Court's decision was to ensure that an
employee who is discharged for his protected speech is placed in no worse a position for
engaging in such speech. Id. at 285-87.
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PUBLIC EMPLOYEES
As noted by Justice Brennan in his dissent, the majority's
application of the Pickering balancing test was laden with errors.80 First, the Court considered the context in which Myers'
questionnaire was circulated not only in determining whether office efficiency had been adversely affected, but also in evaluating
the extent to which the questionnaire addressed matters of public concern. Previous authority calls for the context factor to be
weighed into the balance only as it relates to the government's
interest as an employer.
In Givhan v. Western Line Consolidated School District,"'
the Court decided that the "manner, time, and place" of the
communication-in short, its context-may be relevant to determining whether office efficiency has been disrupted where the
employee personally confronts her immediate superior.8 2 Myers'
initial confrontation with Waldron was personal,s and therefore,
the above rule applies. But there is no authority to support the
proposition that the context of the communication at issue may
be considered for purposes of determining whether such communication relates to matters of public concern. To the contrary, as
pointed out by Brennan," the Givhan Court stated that the first
amendment right to freedom of speech is not "lost to the public
employee who arranges to communicate privately with his employer rather than to spread his views before the public."88 The
inference follows that the Court intended to disregard the cir80. Connick, 103 S. Ct. at 1695-96.
81. 439 U.S. 410 (1979).
82. Id. at 415 n.4. See supra note 63.
83. Connick, 103 S. Ct. at 1686. The Court also noted that Myers prepared and
distributed the questionnaire at the office. Id. at 1693.
84. Id. at 1696.
85. Givhan, 439 U.S. at 415-16. Givhan was a public school teacher who had been
fired for privately expressing criticism of the school's desegregation efforts to the school
principal. Although the case was remanded for a Mount Healthy causation analysis, see
supra note 79, the thrust of the Court's decision was to abrogate the distinction between
private and public expression of protected speech for public employees. The Connick
Court sought to distinguish Givhan on the ground that Givhan's speech was "inherently
of public concern." Connick, 103 S. Ct. at 1691 n.8. But this distinction begs the question
of whether Myers' speech was of public concern as well, and in no way impacts upon the
erroneous conclusion that the context in which it was made may be weighed in the second half of the Pickering calculus.
See also Schneider v. State, 308 U.S. 147, 163 (1939), where the Court noted that
"one is not to have the exercise of his liberty of expression in appropriate places
abridged on the plea that it may be exercised in some other place."
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cumstances under which the speech was expressed in resolving
whether the speech touched upon matters of public concern.
The second flaw in the Court's analysis was its unduly
broad reading of the government interest component of the
Pickering calculus. Having acknowledged that at least one of the
inquiries in Myers' questionnaire86 touched upon a matter of
public concern, 87 the majority proceeded to offset the questionnaire's effect upon the balance by conveniently expanding the
factors comprising the countervailing state interest of promoting
efficiency. This expansion, which relates to the weight accorded
these factors, not to an increase in their number, was manifested
on two levels.
At the first level, the majority incorrectly applied the facts
surrounding the distribution of the questionnaire to the collateral elements to be considered in applying the test as set forth in
the Pickering opinion." The district court's findings of fact s
bear out the assertion that Myers' exercise of speech did not materially interfere with the efficient administration of official responsibilities. 90 The majority's contention, for instance, that
question ten of the questionnaires' presented "the clear potential for undermining office relations" 9 is explicitly belied by the
record. 9" Further, the majority implicitly contradicted itself by
noting that, where the first amendment is at issue, "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,"" yet later stating that "the context in
86. See supra note 56.
87. See supra note 57 and accompanying text.
88. See supra note 27.
89. Myers v. Connick, 507 F. Supp. 752, 753-56 (E.D. La. 1981).
90. The relevant findings at trial established that (1) Myers' distribution of the
questionnaire was not a breach of confidentiality, id. at 758; (2) Connick was unable to
prove that Myers' use of office copying equipment violated office policy, id. at 759; and
(3) the fact that Myers distributed some of the questionnaires during working hours in
no way impeded the effective performance of her duties, id. at 754-55, 759.
91. "Do you have confidence in and would you rely on the word of... [five named
superiors]." Connick, 103 S. Ct. at 1694.
92. Id. at 1693.
93. Justice Brennan noted that the district court heard testimony from four of the
five named supervisors and concluded that Myers' relationships with them were not adversely affected. Id. at 1701.
94. Id. at 1690.
1984]
PUBLIC EMPLOYEES
which the dispute arose is also significant.'
These two assertions cannot be logically reconciled. The context surrounding the
dispute necessarily embraces the fairness and reasonableness of
the dismissal. To this extent, the Court should have considered
the factors motivating Myers to draft and circulate the questionnaire.96
The second level on which the majority expanded the scope
of the government's interest builds upon the first. By errone95. Id. at 1693.
96. Myers' opposition to the transfer was based upon conflict of interest considerations. See supra note 34. In light of the high ethical standards she obviously maintained
as an attorney, such opposition was entirely reasonable. Acquiescing to the proposed
transfer may very well have implicated her credibility as an attorney, and thus her concerns were well founded. A fair reading of the Pickering balancing test requires that the
full context in which the expression was made be taken under the Court's advisement.
To construe the disruption of efficiency component of the balancing test otherwise is to
give the government employer an inherent analytical advantage, as the majority's reasoning in Connick demonstrates.
The Court attempted to sidestep this imbalance by quoting in a footnote:
The Constitution has imposed upon this Court final authority to determine the
meaning and application of those words of that instrument which require interpretation to resolve judicial issues. With that responsibility, we are compelled to examine for ourselves the statements in issue and the circumstances
under which they are made to see whether or not they ... are of a character
which the principles of the First Amendment, as adopted by the Due Process
Clause of the Fourteenth Amendment, protect.
Connick, 103 S. Ct. at 1692 n.10 (quoting Pennekamp v. Florida, 328 U.S. 331, 335 (1946)
(footnote omitted) (contempt order issued against publisher and associate editor of
newspaper for publishing editorials and cartoon denouncing state trial court proceedings
must be struck down as violative of the first and fourteenth amendments)). But the Connick Court betrayed the true meaning of this oft-cited excerpt by detaching it from the
surrounding context. The quote was actually used to support a holding which expanded
the free speech rights of newspaper editors and publishers. Pennekamp, 328 U.S. 331,
346-350 (1946). The quote has generally been used in other cases to indicate an application of heightened scrutiny by the Court to the specific facts before it. See, e.g., NAACP
v. Claiborne Hardware Co., 102 S. Ct. 3409, 3427 n.50 (1982) (Court is under a special
obligation to critically examine the basis upon which liability was imposed for the exercise of a constitutionally protected activity); Jacobellis v. Ohio, 378 U.S. 184, 189 (1964)
(the Court must make an independent judgment in determining whether material condemned as obscene is constitutionally protected). Moreover, the Pennekamp strict scrutiny doctrine has been particularly applied in situations where "the question is one of
alleged trespass across 'the line between speech unconditionally guaranteed and speech
which may legitimately be regulated.'" New York Times Co. v. Sullivan, 376 U.S. 254,
285 (1964) (quoting Speiser v. Randall, 357 U.S. 513, 525 (1958)). Sheila Myers' claim
raised that exact question. Though previous authorities mandate an obligation on the
part of the Court to carefully examine all the facts giving rise to the statement, the
Connick Court considered only those facts tending to favor Connick's decision. Instead
of scrutinizing the propriety of Connick's judgment, the Court deferred to it.
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ously giving conclusive weight to Connick and Waldron's perception of the potentially disruptive nature of the incident,97 it laid
an illusory foundation for the proposition that an employer need
not "allow events to unfold to the extent that the disruption of
the office and the destruction of the working relationships is
manifest before taking action."'98 As noted by the dissent,9 9 this
assertion is in substantial conflict with the Court's holding in
Tinker v. Des Moines Independent Community School District.10 0 There the Court recognized that the state, acting
through its school officials, must show something more than "a
mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint" in order to justify a
prohibition on the expression of opinion. 10 1 This "something
more" amounted to a burden on the state to show that the prohibited speech would "'materially and substantially interfere
with the requirements of appropriate discipline in the operation
of the school.' ,11o2
Despite the fact that Tinker was decided in the context of a
"semi-public forum,"1 0 its rationale should apply with equal
force to all public employee environments. As noted, the Connick majority yielded to the petitioner's judgment, and based its
conclusions almost exclusively on his subjective perception of
Myers' actions. By so deferring to Connick's appraisal of the situation, the Court effectively placed Myers' free speech rights in
his hands. This practice runs dangerously afoul of the intrinsic
97. Connick, 103 S. Ct. at 1692. The Court stated that "[w]hen close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to
the employer's judgment is appropriate." Id.
98. Id.
99. Id. at 1701.
100. 398 U.S. 503 (1969).
101. Id. at 509 (emphasis added). In Tinker, the Court apparently acknowledged
that some disruption will necessarily follow the espousal of an unpopular viewpoint. In
this regard, the appropriate inquiry must be framed in terms of the degree to which such
disruption will justify termination of the employee. The Connick Court defined this degree in the lowest possible term, holding that the mere apprehension of disruption will
suffice.
102. Id. (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).
103. See discussion supra at note 29. It is worth noting that Tinker is not limited
to the free speech rights of students. In the closely related case of James v. Board of
Educ., 461 F.2d 566 (2d Cir.), cert. denied, 409 U.S. 1042 (1972), for example, the court
upheld the right of a public school teacher to wear a black armband in protest of the
Vietnam War.
PUBLIC EMPLOYEES
1984]
free speech precepts set forth in Tinker.1 '"
Curiously, the majority in Connick never attempted to distinguish Pickering on the basis of forum. Perhaps this may be
accounted for by the fact that Mr. Pickering's exercise of speech
in no way implicated his status as a teacher.10 5 Both he and Ms.
Myers spoke out as government employees commenting upon
the administrative policies of their respective employers. Clearly
this foregoing similarity serves to strengthen the contention that
Connick amounts to an unwarranted retraction of the rights
public employees had enjoyed under Pickering.
B.
Narrowing the Scope of ProtectedSpeech
Connick illustrates the abuses to which the concept of balancing interests may be subject. The numerous misapplications
of the Pickering balancing test by the Connick majority suggest
that the test itself is a mere cosmetic device through which the
Court may give force and credibility to its conclusions.'" In this
case the Court has concluded that an intra-office questionnaire
soliciting views on the internal policies of a public office is not
protected speech within the meaning of the first amendment. As
illustrated below, this is clearly a conclusion upon which judicial
minds may differ.
The facts in Lindsey v. Board of Regents107 represent an almost perfect hybrid of those presented in Pickering and Connick, effectively blending together the most significant aspects of
both for review by one federal court. Lindsey was a non-tenured
assistant professor at a state university whose teaching contract
was not renewed after seven consecutive years of employment.1 08
The sole reason for the non-renewal was a questionnaire that
104.
105.
See supra note 101 and accompanying text.
Pickering v. Board of Educ., 391 U.S. 563, 574 (1968).
106. Justice Black, noted for his first amendment absolutist philosophy, has emphasized this point in a number of his dissenting opinions. See, e.g., Communist Party v.
Control Bd., 367 U.S. 1, 164 (1961) (history shows that the balancing test doctrine has
been the excuse for practically every repressive measure adopted by Government); Braden v. United States, 365 U.S. 431, 444 (1961) (people who cherish the freedoms protected by the Bill of Rights cannot afford to sit complacently by as those freedoms are
destroyed by sophistry and dialectics); Blarenblatt v. United States, 360 U.S. 109, 145
(1959) (Court's misapplication of the balancing test reduces the doctrine to a mere play
on words).
107. 607 F.2d 672 (5th Cir. 1979).
108. Id. at 673.
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Lindsey, along with ten other professors, had prepared and distributed amongst the university faculty.10 9 The fifteen item
questionnaire was remarkably similar to the one at issue in the
Connick case, addressing itself to matters of university policy
and faculty-administration relations.11 0
The Lindsey court held that the matters discussed in the
questionnaire were of "public importance and concern," thereby
elevating the questionnaire to speech protected under the first
amendment." 1 The court relied upon, and cited extensively
from, the Pickering case. 112 Pickering should have been equally
dispositive in the Connick case.
Given the validity of Myers' concerns regarding the pro109. Id. at 673-74.
110. Compare, for example, the following sample of questions to which the participants were instructed to respond on the basis of a "low" to "high" rating:
1) Your trust and faith in your leaders
3) Your leaders' acceptance of faculty participation in setting University
policy
5)
6)
7)
The extent to which good teaching is rewarded
Your ability to influence decisions which affect you directly
Your ability to influence broader policy and administrative decisions
9)
Fairness of decisions which affect you
13) Your leader's provision of means for dealing with grievances
Id. at 673 n.1.
111. Id. at 674.
112. The Lindsey court found particularly compelling the Supreme Court's assertion that the judgment of the school board on questions usually left to a popular vote
cannot be taken as conclusive. Id. To inform the electorate on such questions, teachers,
who are the members of the community most likely to have informed opinions, must "be
able to speak out freely on such questions without fear of retaliatory dismissal." Id.
(quoting Pickering v. Board of Educ., 391 U.S. 563, 571-72 (1968)). The Lindsey court
was similarly struck by the Supreme Court's emphasis on the fact that the teacher's
conduct in no way impeded the proper performance of his daily duties. "In these circumstances we conclude that the interest of the school administration in limiting teachers'
opportunities to contribute to public debate is not significantly greater than its interest
in limiting a similar contribution by any member of the general public." Lindsey, 607
F.2d at 675 (quoting Pickering v. Board of Educ., 391 U.S. 563, 573 (1968)).
Lindsey, like Pickering, may not be distinguished from Connick on a semi-public
forum rationale, as the Lindsey questionnaire clearly embraced matters of administrative, not academic concern. For an interesting comparison, see Clark v. Holmes, 474 F.2d
928 (7th Cir. 1972), cert. denied, 411 U.S. 972 (1973), which discusses the free speech
rights of a state university professor in a purely academic context.
1984]
PUBLIC EMPLOYEES
posed transfer, 18 the incident raised serious questions about
District Attorney Connick's judgment in formulating office policy. Moreover, the effect of office policy, as determined by Connick, upon the morale of the assistant district attorneys was of
similar import because the overall performance of the office may
well have turned upon the employees' confidence in the judgment of their superiors. Myers' questionnaire squarely confronted these issues. It may well have led to conclusions "that
could reasonably be expected to be of interest to persons seeking
to develop informed opinions about the manner in which the Orleans Parish District Attorney, an elected official charged with
managing 4a vital government agency, discharges his responsi'11
bilities.
The fact that the Orleans Parish District Attorney is an
elected official invites the drawing of an analogy to the law of
defamation. So essential is the first amendment right to criticize
the conduct of elected and other public officials that in 1964 the
Supreme Court determined such speech to be qualifiedly privileged. 11 5 As the Court clarified in a subsequent decision, privilege is determined, not by whether the comment is a matter of
public concern, but rather on the basis of whether the defamation plaintiff is a public official."" In light of these expansive
readings of the first amendment by the Court for purposes of
defamatory statements,'" the conclusion that a similar protec113. See supra notes 34 & 96 and accompanying text.
114. Connick, 103 S. Ct. at 1698 (Brennan, J., dissenting). In Justice Marshall's
dissent in Arnett v. Kennedy, 416 U.S. 134 (1974), he stated: "The importance of Government employees' being assured of their right to freely comment on the conduct of
Government, to inform the public of abuses of power and of the misconduct of their
superiors, must be self evident in these times." Id. at 228.
115. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). See supra note 71. In
his dissent in Connick, Justice Brennan reiterated the proposition that "[tlhe maintenance of the opportunity for free political discussion to the end that government may be
responsive to the will of the people and that changes may be obtained by lawful means,
an opportunity essential to the security of the Republic, is a fundamental principle of
our constitutional system." Connick, 103 S. Ct. at 1697 (1983) (quoting Stromberg v.
California, 283 U.S. 359, 369 (1931)).
116. See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). The Gertz Court eschewed the idea of allowing courts to determine on an ad hoc basis what constituted
matters of public concern, stating, "[w]e doubt the wisdom of committing this task to
the conscience of judges." Id. at 346.
117. See Note, The First Amendment and Public Employees: Times Marches On,
57 GEO. L.J. 134 (1968) [hereinafter cited as Times Marches On], where it is noted that
the Court could have reached the same decision in New York Times on several other
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tion should be extended to statements of opinion-even if made
by public employees-seems inescapable."' 8
No single doctrine can judiciously accommodate the diverse
and often opposing areas of interest that have come to be identified under the first amendment."" However, Connick demonstrates the need for a more consistent approach in squaring
these various interests with fundamental free speech principles.120 Admittedly, the many tensions that arise under the first
amendment do not lend themselves to facile resolutions. Thus,
where an equitable formulation is constructed, it should be pursued with vigor. Pickering,though flawed in several respects, advanced a positive analytical framework that subsequent decisions sought to hone into a tenable legal doctrine. Connick has
frustrated this development, primarily at the expense of the
public employee.
V.
IMPACT
The federal, state and local governments of the United
States constitute the single largest source of employment in the
grounds, but instead went to great lengths to do so by way of the first amendment. Id. at
144-45.
118. The notion of adapting the New York Times standard to the free speech
rights of public employees has not been without its advocates. See, e.g., Swaaley v.
United States, 376 F.2d 857, 862 (Ct. Cl. 1967) (New York Times doctrine applies to
federal employees' petitions); Turner v. Kennedy, 332 F.2d 304, 307 (D.C. Cir.) (Fahy, J.,
dissenting) (discharge of classified civil service employee for writing false letters to senator and congressman regarding personnel conditions should be governed by the New
York Times standard), cert. denied, 379 U.S. 901 (1964). But see Meehan v. Macy, 392
F.2d 822, 833 (D.C. Cir. 1967) (rejecting the right of public employees to invoke the New
York Times doctrine on the ground that the added interests of the sovereign as employer
"are factors to be considered in adjusting and balancing constitutional concerns"), modified, 425 F.2d 469 (D.C. Cir. 1968) (recognizing the applicability of the New York Times
standard, but remanded for reconsideration in light of Pickering).
119. Emerson has divided these areas of interest into five general categories: "(1)
freedom of belief; (2) possible conflict of the right of expression with the other individual
interests; (3) possible conflict with other social interests; (4) regulation designed to facilitate the operation of the system; and (5) government participation in the process of expression." Emerson, supra note 2, at 918-19.
120. Emerson emphasized that a system of free expression must be advanced in a
precise and clear manner, and must be adhered to with some degree of consistency in
order to maximize the benefits to be realized under it. Our legal institutions must assure
the individual that his rights will be protected, as any doubts or uncertainties will inhibit
his exercise of them. Id. at 894.
1984]
PUBLIC EMPLOYEES
nation.1"2 ' By upholding District Attorney Connick's right to dismiss Shiela Myers for the harmless solicitation of her fellow employees' opinions on matters of office policy and morale, the Supreme Court has granted these governments the power to
condition employment upon the unreasonable surrender of
meaningful free speech rights. The decision raises the ominous
spectre of the Holmes formulation, at least in form, if not in
substance.
The irony of the Connick decision is that it will ultimately
work to defeat the very goal it endeavors to accomplish. This
will occur in three ways. First, the decision may discourage quality personnel from seeking government employment because
such individuals will fear the loss of the full range of constitutional liberties they enjoy in the private sector. 2
Second, the Court's emphasis on the potentially negative effect of uninhibited expression by public employees blindly discounts any possibility of a contrary result. The fact is that employee criticism of the administration of public services is just as
likely to increase its efficiency. 23 Thus, the government is losing
a valuable resource in the comments of its own employees.
The third aspect is indeed the most unsettling. Undoubtedly, the Connick decision will induce not protest, but silence.
To the practical minded wage earner, the prospect of unemployment will hardly seem a fair price to pay in exchange for the
exercise of a heretofore cherished right to speak his mind.
Though it is difficult to determine the degree to which the ruling
will chill the expression of public employees, one consequence is
clear: a first amendment defeat for public employees, one of our
most valuable sources of enlightenment regarding the internal
mechanisms of government, is a defeat for all who cherish free
speech." 4
121. In 1981, 15,968,000 people were employed by the federal, state and local governments. U.S. BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES 303
(1982-83).
122. See Times Marches On, supra note 117, at 158.
123. Id. at 157.
124. "Legislation which muzzles several million citizens threatens popular government, not only because it injures the individuals muzzled, but also because of its harmful
effect on the body politic in depriving it of the political participation and interest of such
a large segment of our citizens." United Pub. Workers v. Mitchell, 330 U.S. 75, 111
(1947) (Black, J., dissenting).
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VI.
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CONCLUSION
Most of the free speech rights gained by public employees
under the first amendment since the abrogation of the rightprivilege distinction and culminating in Pickering have been severely abridged by the Supreme Court in Connick v. Myers.12 5
The majority in Connick has defined matters of public concern
in significantly more restrictive terms than in previous decisions,
thereby narrowing the scope of protected speech for public employees. The reasoning behind the decision is predicated upon a
tenuous application of the seminal balancing test the Court laid
down in Pickering. As a result of Connick, public employees will
refrain from engaging in speech which might be construed by
the courts as being outside the protection of the first
amendment.
Jonathan Alen Marks
125.
103 S. Ct. 1684 (1983).