The Pickering Balancing Test: Volume 1

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret, and discuss the Pickering balancing test. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals.

When determining whether an individual spoke as a public employee versus a private citizen, three Supreme Court cases guide our analysis. First, in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the Court instructed that we determine if the employee spoke as a citizen on a matter of public concern, and if so, whether the government employer was justified in treating the employee differently from any other member of the general public. Id. at 568, 88 S.Ct. 1731. This initial inquiry has become known as the Pickering balancing test.Second, in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the Supreme Court specified this inquiry by holding that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 421, 126 S.Ct. 1951. This rule is based on administrative efficiency and acts to keep every workplace dispute from becoming a federal case. See id. at 418, 126 S.Ct. 1951. This rule, however, is balanced with the Court's acknowledgement that if "employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively." Id. at 419, 126 S.Ct. 1951 (citation omitted).

Third, and most recently, the Court decided Lane v. Franks, 573 U.S. 228, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014). The Lane Court focused on the nexus between the employee's speech and his/her job duties, stating that "the mere fact that a citizen's speech concerns information acquired by virtue of his public employment does not transform that speech into employee-rather than citizen -speech." Id. at 240, 134 S.Ct. 2369. Thus, the "critical question" is "whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties." Id.

Javitz v. County of Luzerne, 940 F. 3d 858 (3rd Cir. 2019)