Synopsis "The Pickering-Connick Balancing Test"
THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply the Pickering-Connick balancing test. "The Supreme Court has developed two lines of cases that assess how to balance the First Amendment rights of government employees with the need of government employers to operate efficiently." Thompson v. Shock, 852 F.3d 786, 791 (8th Cir. 2017). Where [ ] a case involves "overt expressive conduct," our court applies "the balancing test as found in the line of cases following Pickering and Connick. The typical Pickering-Connick case involves a government employee causing workplace disruption by speaking as a citizen on a matter of public concern, followed by government action adversely affecting the employee's job." Id. (internal citation omitted). Morgan v. Robinson, 881 F. 3d 646 (8th Cir. 2018). The first question in this analysis asks whether the employee's speech was made as a citizen on a matter of public concern. Lane, 134 S.Ct. at 2378; accord Anzaldua v. Ne. Ambulance & Fire Prot. Dist., 793 F.3d 822, 833 (8th Cir. 2015). Where this question is answered in the affirmative, the court next asks whether the employer "had an adequate justification for treating the employee differently from any other member of the general public." Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); accord Anzaldua, 793 F.3d at 833 ("[I]f the possibility of a First Amendment claim has arisen, then our second inquiry is to ask whether [the employer] has produced evidence to indicate the speech had an adverse impact on the efficiency of the [employer's] operations." (alterations in original) (internal quotation marks omitted)). Finally, if each party has met their burden, the court applies the Pickering-Connick test to balance the competing interests. Anzaldua, 793 F.3d at 835. Morgan v. Robinson, Ibid.
