The Pickering Balancing Test: Volume 2

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret, and discuss the Pickering balancing test. Volume 2 of the casebook covers the Sixth through the Eleventh Circuit Court of Appeals.

The Supreme Court has established a framework to balance the free speech rights of government employees with the government's interest in avoiding disruption and maintaining workforce discipline. See Pickering v. Bd. of Ed. of Twp. High Sch. Dist., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Under the Pickering framework, the plaintiff first has to establish that "(1) []he spoke on a matter of public concern; (2) [ ] he spoke as a private citizen rather than a public employee; and (3) the relevant speech was a substantial or motivating factor in the adverse employment action." Barone v. City of Springfield, Or., 902 F.3d 1091, 1098 (9th Cir. 2018). Moser v. Las Vegas Metropolitan Police Dept., 984 F. 3d 900 (9th Cir. 2021).

"[I]f the plaintiff has passed the first three steps, the burden shifts to the government to show that under the balancing test established by Pickering, the state's legitimate administrative interests outweigh the employee's First Amendment rights." Eng, 552 F.3d at 1071 (alterations and internal quotation marks omitted). "This inquiry, known as the Pickering balancing test, asks 'whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.'" Id. (quoting Garcetti, 547 U.S. at 418, 126 S.Ct. 1951); see Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Greisen v. Hanken, 925 F. 3d 1097 (9th Cir. 2019).