ABSTRACT
In Pickering v. Board of Education, (391 U.S. 563 [1968]), the U.S. Supreme Court sharply limited the authority of public employers to punish their employees for externally speaking out on matters of public concern. The Pickering decision held that all public employees have a First Amendment freedom of speech right to speak on matters of public concern unless their speech unduly disrupts the operation of their organization (Rosenbloom, 1975). The Pickering two-part balancing test almost immediately transformed the relationship between public employees and management. Instead of being able to enforce sweeping gag rules on their employees, Pickering forced public employers to carefully evaluate the external speech of their employees on a case-by-case basis. Yet, Pickering did not provide public employees any protection from retaliation for internal complaints involving arguably matters of public concern. With little fanfare, in Givhan v. Western Line Consolidated School Dis-
trict (439 U.S. 410 [1979]), the U.S. Supreme Court handed public employees a major victory by extending the Pickering balancing test to the workplace speech of public employees. Givhan gave public employees a certain level of protection when they internally complained about the practices of their organizations as long as their complaint dealt with a matter of public concern. After Givhan, it appeared that the U.S. Supreme Court had firmly come down on the side of giving public employees broad discretion to speak out externally or internally on matters of public concern without fear of retaliation by their government employers. This conclusion proved highly premature. In Connick v. Myers (461 U.S. 138 [1983]), the U.S. Supreme Court sharply
limited the types of internal criticisms of public employees that fell within the protection of the public concern doctrine. In most instances, criticism by a public employee of internal management practices did not constitute a matter of public concern. The Connick decision clearly had a chilling impact on the ability of public employees to openly criticize the internal management practices of their employers without facing the prospect of retaliation. By the early 1990s the so-called Pickering-Connick two-part balancing had become a fixture of public workplace freedom of speech jurisprudence (O’Neil, 1993, pp. 34-46).
