Courts currently employ a three-part test to determine whether a government employee’s speech is protected by the First Amendment.
1) First of all, government employees are only protected by the First Amendment when they are speaking as private citizens. If their speech is part of their official job duties, then they can be fired or disciplined for it.
This rule comes from a 2006 Supreme Court case, Garcetti v. Ceballos. Obviously, it isn’t always easy to differentiate when a government employee is speaking as a private citizen, and when they are speaking as a government employee.
The Supreme Court has provided very little guidance in this area. Garcetti established that an employee’s official duties are not limited to the employee’s official job description. Thus far, the Supreme Court has only specified one situation where Garcetti does not apply: in Lane v. Franks, the Court held that an employee is not speaking pursuant to his official duties when he gives sworn testimony that is compelled by subpoena.
The Garcetti decision means that many government employees who are performing whistle-blowing functions–meaning, disclosing information about a government agency violating the law, wasting money, or abusing its authority–are not protected by the First Amendment, since reporting misconduct is often part of an employee’s official duties. Although there are state and federal laws that are specifically meant to protect whistleblowers from being fired, demoted, or otherwise retaliated against by the agencies they work for, many have criticized the Garcetti decision for depriving most whistleblowers of First Amendment protection.
2) If a government employee was speaking as a private citizen, the next question is, was their speech regarding a matter of public concern? If they weren’t speaking on a matter of public concern, the First Amendment will not protect their speech. If they were speaking on a matter of public concern, the First Amendment might protect their speech. (There’s still a test to go after that.)
Speech is considered to regard a matter of public concern if it relates to a social, political or community issue. While speech touching on corruption or racial discrimination in a workplace tends to be viewed as relating to matters of public concern, at least one federal appeals court (the 11th Circuit) has held that speech pertaining to sexual harassment is a matter of private concern. The definition of public concern has been interpreted widely by different circuit courts, so the definition might vary depending on where the case has been brought.
The Supreme Court established this as a necessary element for a government employee’s speech to be protected by the First Amendment in Pickering v. Board of Education. In a later case, Connick v. Myers, the Supreme Court instructed that the question of whether an employee’s speech addresses a matter of public concern should be determined by looking at the content, form, and context of a given statement, as revealed by the whole record, and not by applying a common, standardized rule. The Court also said that this was a question of law, meaning that it should be left to the court to decide, not a jury.
3) If a government employee was speaking as a private citizen on a matter of public concern, the next question is whether the government employer’s interest in efficiently fulfilling its public services is greater than the employee’s interest in speaking freely.
This test was also established by the Pickering and Connick cases.
The government employer has an interest in efficiently providing public services and maintaining good professional relationships within an office. Courts analyze the government employer’s interest by considering the following set of factors:
Whether the speech would interfere with the employee’s responsibilities;
The nature of the working relationship between the speaker and those at whom the criticism was directed;
Whether the relationship between the speaker and the person criticized was sufficiently close that the speech would create disharmonious relations in the workplace;
Whether the speech would undermine an immediate superior’s discipline over the employee; and
Whether the speech would compromise the loyalty and confidence required of close working employees.
When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference is given to the government employer’s judgment. After a court considers each factor, it must weigh these factors against the employee’s interest in speaking out.
https://www.freedomforuminstitute.org/fi...,Ceballos.