Westlaw Download Summary Report for GRAND VALLEY STA 3361520 Your Search: FREE SPEECH FIRST AMENDMENT GOVERNMENT EMPLOYEES Date/Time of Request: Monday, October 24, 2005 17:11:00 Central Client Identifier: GRANDVALLEY Database: LAWREV-PRO Citation Text: 24 CAPULR 893 Lines: 1225 Documents: 1 Images: 0 The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson, West and their affiliates. 24 CAPULR 893 24 Cap. U. L. Rev. 893 (Cite as: 24 Cap. U. L. Rev. 893) Capital University Law Review 1995 Note *893 WATERS v. CHURCHILL: THE PROCEDURAL DUE PROCESS DISGUISE OF PUBLIC EMPLOYEE FREE SPEECH RIGHTS Elizabeth A. Riley Copyright (c) 1995 by Elizabeth A. Riley INTRODUCTION When an employee speaks out about the policies, practices, or operations of his or her employer, that employee may be subject to discharge depending on what type of employment situation exists. Employees may be divided into two groups: private employees who work for a private employer, and public employees who work for the federal, state or local government. [FN1] Generally, the First Amendment [FN2] does not protect the speech of a private employee because there is no government action present. [FN3] Thus, private employees can be terminated for engaging in speech. The situation is drastically different, however, when a public employee speaks. Government action is present when adverse action is taken against a public employee by a public employer (government employer) because of speech; yet such termination based on speech is permitted, despite the First Amendment, under some circumstances. Historically, and continuing until 1967, public employees were treated the same as private employees, and no distinction was made in the First Amendment arena. [FN4] Thus public employees enjoyed no First Amendment *894 rights beyond those of private employees. [FN5] The reasoning was that when one is hired as a public employee, an implied condition of employment is the relinquishment of certain constitutional rights. [FN6] This outlook began to change, however, in 1967 when the United States Supreme Court first held that public employees did not necessarily cede all constitutional rights as public employees. [FN7] In 1968, the Court for the first time recognized public employees' free speech rights in Pickering v. Board of Education. [FN8] The Court recognized that due to the special nature of an employment relationship, conferring First Amendment speech rights upon public employees required that a balance be struck between the interest of the " employee as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees" [FN9] (hereinafter referred to as the Pickering balance test). The Court further refined the Pickering balance test in Connick v. Myers, [FN10] and shed light on what speech actually constitutes a matter of public concern for which public employees would enjoy First Amendment protection (hereinafter referred to as the Connick test). [FN11] Most recently, in Waters v. Churchill, [FN12] the Court addressed the issue of whether the Connick test should be applied to the speech as the government employer found it to be, or applied to what the trier of fact ultimately finds the speech to be. The Court held that the government employer must make a reasonable inquiry (hereinafter referred to as the reasonableness test) in order to determine whether the speech was protected as a matter of public concern prior to terminating the public employee. *895 The reviewing court must then decide whether the employee was actually fired for the protected speech or for some other reason. [FN13] Essentially, the Court developed a procedural due process protection for public employees in the area of First Amendment free speech. [FN14] Although some may disagree that public employees should enjoy greater First Amendment speech rights than private employees, this note will not focus on this issue. Instead, this note will first discuss the significant Supreme Court precedents in the area of public employee free speech. Next, this note will analyze the decision in Waters v. Churchill. [FN15] Finally, this note will criticize the decision for reducing First Amendment protection to public employees, under the guise of a seemingly expanded due process protection, by conferring a meaningless procedural due process right upon public employees. I will conclude that if the Court is going to maintain a distinction between the two groups of employees, then it should not erode the rights previously given. I. HISTORICAL BACKGROUND Until the 1950's, no constitutional difference existed between the Supreme Court's First Amendment protection of public employee speech and private employee speech. Conferring First Amendment protection to the speech of public employees was considered by the Court to be conferring additional benefits on public employees which were not warranted. [FN16] This view has changed significantly in the past three decades. [FN17] The first cases that expanded the constitutional rights of public employees came in the area of loyalty oaths used as conditions of public employment. In these cases, public employees were required to disavow allegiance to certain radical groups, in order to obtain public employment. In Wiemann v. Updegraff, [FN18] the Court struck down a Wisconsin statute which required public employees to swear they were not members of the Communist Party in order to obtain public employment because the "oath offend ed due process." [FN19] *896 The Court further expanded public employee constitutional rights in 1960, striking down an Arkansas state statute which required public school teachers to sign affidavits listing every organization to which they belonged in the preceding five years. [FN20] Finally, in 1967, the Court's decision in Keynishian v. Board of Regents firmly established that public employment could not be conditioned upon the giving up of a constitutional right. [FN21] The Court's reasoning in Keynishian was based upon the underlying rationale of the First Amendment, which commands that there be a free exchange of ideas so as to yield the truth. [FN22] At this point the Court had firmly established that public employees do enjoy constitutional protection. The Court, though, had yet to grant public employees free speech rights. In 1968, the Court was ready to address the free speech concerns of public employees. The culmination of this long road to free speech came with the decision in Pickering v. Board of Education. [FN23] A. The Development of Free Speech of Public Employees 1. Pickering as a Landmark In Pickering, the Court held that a public school teacher could not be dismissed for sending a letter to a local newspaper criticizing the school board's use of past tax revenues. [FN24] Marvin Pickering's letter to the editor of a local newspaper discussed the disproportionate allocation of school funds in favor of athletics over expenditures for educational programs. The school board dismissed Pickering, stating that the published letter was *897 detrimental to the efficient operation and administration of the school system. [FN25] In reaching its decision, the Court reasoned that a balance must be struck between the competing interests of the teacher, "as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees." [FN26] The Court concluded that the statements contained in the letter were not directed toward any particular person with whom Pickering would normally be in contact within the course of his employment. Thus, there was no potential for conflict between supervisors and co-workers. [FN27] The Court determined that the letter addressed a legitimate public concern, since teachers are likely to have opinions on issues affecting the allocation of school funds. [FN28] The Court formulated several factors to aid the lower courts in applying the Pickering balance test. [FN29] The Court listed five factors to tip the balance in favor of the employer, thereby allowing the employer to infringe upon the free speech rights of a public employee: the employer's need for a supervisor to maintain authority to discipline workers and the concern for continued harmony among co-workers; [FN30] the employer's need to maintain confidentiality; [FN31] where the relationship between the supervisor and the worker is highly personal and intimate, the concern is that certain forms of expression may seriously undermine the effectiveness of the working relationship; [FN32] the employer's need for employees who can properly perform their duties; [FN33] and the employer's need to maintain general business operations. [FN34] The Court also gave factors which may tip the balance in favor of protecting the free speech of public employees: [FN35] the employee's interest as *898 a citizen in commenting on matters of public concern, [FN36] and the fact that public employees, because of the position they hold within the government, are likely to be better informed on issues and have definite and informed opinions regarding those issues. [FN37] 2. Refinement of Pickering The next significant decision regarding the free speech rights of public employees came in Perry v. Sindermann. [FN38] In Perry, the Court addressed the issue of whether free speech protections were applicable to an at-will public employee. Robert Sindermann was a teacher at a state college. He was employed for four successive years under separate one-year contracts. During his fourth year of employment, Sindermann became involved in public disagreements over the policies of the Board of Regents. As a result of these disagreements, the Board of Regents voted not to renew his contract for the next academic year. [FN39] The Court held that the lack of a contractual relationship or tenure right to re-employment did not defeat Sindermann's claim that the nonrenewal of the contract violated the Constitution. In other words, although the employee had no right to employment he could not be denied employment based on a violation of his free speech rights. [FN40] In Mt. Healthy City School District Board of Education v. Doyle, [FN41] the Court defined the proper allocation of the burden of proof in First Amendment cases brought by public employees. Doyle was an untenured teacher for the public school system. He submitted to a local radio station, a memorandum from the school board to the teachers. The memorandum *899 discussed the proper dress code for the teachers at the school and expressed the district's belief that there was a relationship between teacher appearance and the success of bond issues. The station aired the contents of the memorandum as a news item. [FN42] Subsequently, Doyle's contract was not renewed. He sought reinstatement and backpay from the school district for its alleged violation of his First Amendment right to free speech. [FN43] The district court concluded that the radio station incident played a "substantial part" in the board's decision to deny renewal of Doyle's contract and held that Doyle was entitled to reinstatement with backpay. [FN44] The Supreme Court rejected the district court's conclusion, concerned that such reasoning would place an employee in a better position as a result of exercising a constitutional right. [FN45] In order to combat this problem, the Court stated that the initial burden of proof was on the employee to show that the protected conduct was a motivating factor in the employer's decision to deny renewal of the contract. Once the employee meets this burden, the employer in order to prevail, must show by a preponderance of the evidence that it would have made the employment decision regardless of the protected conduct. [FN46] The Court remanded the case to the district *900 court to conduct an inquiry under the newly announced burden of proof allocation and to determine whether Mr. Doyle would have been terminated regardless of the protected conduct. [FN47] In all of the decisions preceding Mt. Healthy, the Court addressed situations in which the communication was indeed made public, either through newspaper articles or over the airwaves. In Givhan v. Western Line Consolidated School District, the Court considered the free speech rights of a public employee whose communication remained private between the employee and the employer. [FN48] The Court held that public employees maintain their free speech rights in the context of private communications with their employer to the same extent as if they had spoken publicly. [FN49] Givhan was a black public school teacher in a district under a desegregation order. She complained on several occasions to the school board, alleging racially discriminatory practices. Givhan was subsequently dismissed as a result of these complaints. [FN50] The district court held that Givhan's complaints were protected by the First Amendment. [FN51] The Court of Appeals for the Fifth Circuit, however, reversed the district court, reasoning that the communication occurred in private rather than in public and thus could not be on a matter of public concern and was not protected. [FN52] The Supreme Court disagreed with the conclusion of the Fifth Circuit and held that there was no requirement for a public forum under the Pickering balance test. [FN53] Then Justice Rehnquist, writing for the majority, noted that the application of the Pickering balance test may need adjustment for private communications. Rehnquist specifically noted that the operational efficiency of the public employer may be more threatened in the area of private communications. [FN54] *901 B. The Next Landmark: Connick v. Myers From Pickering to Givhan, the Court assumed that the speech at issue was on a matter of public concern, thereby fulfilling this prong of the Pickering balance test. [FN55] If the speech was on a matter of public concern, then the public employee would enjoy First Amendment protection unless the public employer showed that its need for operational efficiency outweighed the constitutional right of the public employee. [FN56] For the first time, in Connick v. Myers, [FN57] the Supreme Court found the speech of a public employee to be personal in nature. The Court, in a 5 to 4 vote, held that the First Amendment did not protect such speech. [FN58] The Court attempted to define what constituted a matter of public concern as that term is used in the Pickering balance test. [FN59] In order to do this, the Court stated that the speech must be analyzed by looking at the "content, form and context" of the speech as revealed by the record. [FN60] Myers was an assistant district attorney for the City of New Orleans for five and one-half years. She was notified that she was being transferred to another section of the criminal court. Myers strongly opposed the transfer and desired to learn about the views of the other assistant district attorneys *902 in the office regarding the transfer policy. [FN61] In order to do this, she prepared a questionnaire which she distributed to her co-workers. The questionnaire addressed issues ranging from thoughts on office policy, to attitudes with respect to working on political campaigns. [FN62] Ms. Myers was promptly terminated for her refusal to accept the transfer. She filed suit for wrongful termination predicated on the exercise of her constitutional right to free speech. [FN63] The district court held that, although the employer's stated reason for the adverse action taken against Myers was her refusal to accept the transfer, the facts showed that the real reason was the circulation of the questionnaire. The district court found that the speech was on a matter of public concern and that the state failed to establish substantial *903 interference in its office operations, concluding that the speech was protected. [FN64] The United States Court of Appeals for the Fifth Circuit affirmed this holding. [FN65] The Supreme Court, however, disagreed. The Court determined that the first inquiry for a lower court is whether the speech constituted a matter of public concern. "Whether an employee's speech addresses a matter of public concern must be determined by the content, form and context of the given statement, as revealed by the record as a whole." [FN66] The Court viewed all but one of the questions as involving matters of a personal nature, stating that they were "mere extensions of Myers's dispute over her transfer to another section of the criminal court." [FN67] However, the Court determined that the question regarding working on political campaigns was a matter of public concern. [FN68] Since part of the speech touched upon a matter of public concern, the next step was to balance the two parties' interests under the Pickering balance test. The Court broke this inquiry down into three parts. The first "requires full consideration of the government's interest in the effective and efficient fulfillment of its responsibilities to the public." [FN69] The second addressed "the manner, time, and place in which the questionnaire was distributed." [FN70] The last factor was "the context in which the dispute arose ...." [FN71] In applying these factors, the Court concluded that Myers's questionnaire only touched upon matters of public concern in a limited sense and did not require the state to tolerate this speech. [FN72] In conclusion, the Court noted *904 that great deference was due to the employer's judgment when the employment situation was characterized by close working relationships. [FN73] This reasoning became important in the analysis of the Court's later decision in Waters v. Churchill. C. Application of the Connick Test The Court's first opportunity to apply the Connick test came in 1987 with the decision in Rankin v. McPherson. [FN74] In Rankin, the Court determined that the "threshold question" in analyzing the speech of a public employee, was whether it related to a matter of public concern. [FN75] After hearing of the assassination attempt on President Reagan, McPherson told her boyfriend that, "if they go for him again, I hope they get him." [FN76] The Court concluded that the statement made by the data entry employee in the county constable's office was matter of public concern. [FN77] The Court reiterated the purposes of the First Amendment [FN78] and concluded that, although a statement is unpopular, "vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse ... simply because superiors disagree with the content of the employees' speech." [FN79] In Rankin, the Court for the first time took into consideration the position of the employee stating, that "where the employee serves no confidential, policymaking, or public contact role, the danger to the agency's successful functioning from that employee's speech is minimal," when engaging in the balancing portion of the inquiry. [FN80] Commentators have noted that the Court has failed to give any definite guidelines to the lower courts on how to determine if a statement is a matter of public concern and who decides this, [FN81] even though the Court has *905 stated that this is a question of law. [FN82] In attempting to cull the various tests and pronouncements of the Court to date, it appears that the proper inquiry for a lower court to engage in when presented with an issue of public employee speech is to first determine if the speech is on a matter of public concern, taking into consideration the content, form and context of the statement. [FN83] If the speech is determined to be on a matter of public concern, then the task is to apply the Pickering balance test, taking into consideration the government's interest in efficiency, [FN84] the manner, time, and place of the speech, [FN85] and, if a dispute was on-going prior to the speech, the context in which the dispute arose. [FN86] The employee must show that the speech was a "motivating factor" in the employer's decision to terminate. [FN87] To counter this burden, the state must show that the employee would have been terminated for unprotected conduct regardless of the speech, [FN88] or can justify the discharge for legitimate reasons. [FN89] Factors which the Court deems relevant to the employer's legitimate interests are whether the speech impairs discipline by superiors or harmony among co-woekers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise. [FN90] II. WATERS V. CHURCHILL In prior decisions, the content of the speech was undisputed. The issue of whether to apply the Connick test to the speech as found by the public employer or by the trier of fact was addressed in Waters v. Churchill. [FN91] In Waters, the Court in a plurality opinion held that the Connick test should be applied to what the government employer thought was said by the public *906 employee, not to what the trier of fact ultimately determines to have been said. [FN92] Cheryl Churchill was a nurse in the obstetrics department of the McDonough District Hospital, a public hospital. On January 17, 1987, she engaged in a conversation with another nurse, Melanie Perkins-Graham, who was considering transferring into the obstetrics department. The content of the conversation was in dispute between the parties when the case reached the Supreme Court. One version, that of Ms. Churchill, was that the conversation consisted of comments regarding the hospital's cross-training policy, where nurses from one department could work in another department when their usual department was overstaffed. Churchill admitted that she did criticize Kathy Davis, the hospital's vice-president of nursing, saying that "her staffing policies threatened to 'ruin' the hospital because they 'seemed to be impeding nursing care."' [FN93] The conversation was overheard by two other nurses, Mary Lou Ballew and Jean Welty. Ballew's version of the conversation was that Churchill took "'the cross trainee into the kitchen for ... at least 20 minutes to talk about Waters Churchill's supervisor and how bad things are in obstetrics in general,' and ... that these statements led Perkins-Graham to no longer be interested in working for the obstetrics department." [FN94] Ballew then reported the conversation to Churchill's supervisor, Cynthia Waters. During a second meeting with Waters, Ballew said that Churchill "'was knocking the department' and that 'in general [Churchill] was saying what a bad place [obstetrics] is to work.' Ballew said she heard Churchill say Waters 'was trying to find reasons to fire her."' [FN95] Ballew also stated that Churchill mentioned the negative evaluation she was given by Waters. The evaluation stated that Churchill "promotes an unpleasant atmosphere and hinders constructive communication and cooperation." [FN96] Churchill was subsequently fired. She filed an internal grievance with the hospital president, who rejected the grievance. [FN97] Churchill filed suit against the hospital under 42 U.S.C.
1983, claiming that the firing violated her First Amendment right to free speech as protected under Connick v. Myers. [FN98] *907 A. The Lower Courts' Opinions In an unpublished opinion, the United States District Court for the Central District of Illinois granted summary judgment to Waters, holding that neither version of the story was protected speech on a matter of public concern, and that even if it were on a matter of public concern, its potential for disruptiveness outweighed Churchill's First Amendment rights. [FN99] The United States Court of Appeals for the Seventh Circuit reversed the decision of the district court, finding that the speech was on a matter of public concern. The court held that the content of the speech was a question of fact and thus summary judgment was not proper. [FN100] The court found that Churchill was speaking out on improper nurse staffing policies at the hospital and that this "is most certainly a matter of public concern." [FN101] Further, the court stated that since the two versions of the conversation "stand in stark contrast," the "content of the speech is a question of fact for the jury." [FN102] According to the court, the issue of whether the speech involved a matter of public concern could not be resolved until the content was known. [FN103] *908 B. The Opinion of the Supreme Court The Supreme Court granted certiorari to resolve a conflict among the circuits on the facts to which the Connick test should be applied. [FN104] In addressing the issue of whether the Connick test should be applied to the speech as the public employer thought it to be or to what the trier of fact found the speech to be, the plurality opinion reversed the seventh circuit and held that the Connick test would be applied to the speech as the employer reasonably believed the speech to be. [FN105] In doing so, the Court adopted procedural First Amendment safeguards on a case-by-case basis. [FN106] The Court began by assuming that the government as employer has far broader power than does the government as sovereign. [FN107] In doing so, the Court stated that even the familiar maxims of First Amendment jurisprudence do not apply to the speech of government employees in all situations. [FN108] The Court then stated that since participation in political campaigns may be curtailed constitutionally, this adds fuel to the premise that the government as employer has more power than the government as sovereign. [FN109] Giving great deference to the predictions of the government employer that disruption would result from the speech, [FN110] the Court *909 recognized that "government employers are in the best position to know what ails the agencies for which they work." [FN111] Thus, the Court concluded that constitutional review of government employment decisions rests on different principles than review of speech restraints imposed by the government as sovereign. [FN112] The Court disagreed with the decision of the court of appeals because that court gave insignificant weight to the efficiency concerns of the government as employer. [FN113] An onerous burden is placed on the government employer if the Connick test is applied to the facts as determined by the factfinder. [FN114] This reading of Connick, noted the Court, would force the government employer to engage in proceedings which mirror a court proceeding and thus impose upon the employer the additional burden of having to mirror the evidentiary rules used in court. [FN115] The Court then stated that "employers, public and private, often do rely on hearsay, or past similar conduct, and on their personal knowledge of people's credibility." [FN116] Realizing that giving the public employer unfettered deference regarding decisions to terminate employees for speech related activities would be detrimental to employee speech, the Court imposed a reasonableness requirement upon the public employer. [FN117] If it appears that *910 upon a reasonable investigation, the employee's speech may be protected, a "manager must tread with a certain amount of care." [FN118] The Court defined unreasonable procedures as those that would be "outside the range of what a reasonable manager would use ...." [FN119] Applying this new procedural due process inquiry to the facts in the Churchill case, the Court concluded that if "petitioners really did believe Perkins-Graham's and Ballew's story, and fired Churchill because of it, they must win." [FN120] After determining this, the Court then embarked on an analysis under the Pickering balance test, even though they "need not decide" this, [FN121] finding that as a matter of law the disruptiveness of the speech was enough to tip the scale in favor of the employer. [FN122] The Court remanded the case to the district court for a pretext inquiry to determine whether Churchill was fired because of unprotected statements [FN123] or "because of nondisruptive statements about cross-training ... or ... other statements she may have made earlier." [FN124] C. Concurring Opinion of Justice Souter Justice Souter joined the plurality in holding that a public employer who reasonably believes that the content of the speech as reported by a fellow employee to be unprotected, then the employer may rely on this report as grounds for terminating the employee. [FN125] However, Justice Souter would also add an additional requirement--that the employer "actually believe" the report of the third party--in order to avoid liability for a constitutional violation. [FN126] Thus, if the employer actually suspected that the speech was protected after making a reasonable inquiry, and still *911 fired the employee, the employer would have violated the First Amendment. [FN127] D. Concurring Opinion of Justice Scalia Justice Scalia, joined by Justices Thomas and Kennedy, rejected the reasonableness inquiry as pronounced by the plurality, as "unprecedented, superfluous to the decision in the present case, unnecessary for the protection of public-employee speech on matters of public concern, and unpredictable in its application and consequences." [FN128] These concurring Justices did agree that to some extent the theme of a procedural due process right is present in the First Amendment arena, [FN129] but that these cases primarily deal with governmental deprivation of free speech through the judicial process. [FN130] Scalia's concurrence is extremely critical of the lack of guidance on how to tell "mandated speech-safeguarding procedures from nonmandated ones, except for the clue that 'each procedure involved a different mix of administrative burden, risk of erroneous punishment of protected speech, and risk of erroneous exculpation of unprotected speech."' [FN131] Further, Justice Scalia pointed out that Churchill, as an at-will employee, lacked a property interest in her job and that conferring a procedural due process right in this arena was in "disharmony" with previous cases in which procedural due process safeguards were required because of the existence of a property right in continued employment. [FN132] Justice Scalia noted that the inherent difficulty with the reasonable inquiry test is that it protects the employer who does a reasonable inquiry, but at the same time wrongfully *912 discharges the employee. [FN133] Thus, Scalia wrote, the standard of employer liability in this "strange jurisprudence" [FN134] is converted from "liability for intentional wrong to liability for mere negligence." [FN135] Justice Scalia's second criticism of the plurality opinion was that the creation of the procedural due process right in this case was superfluous, as the plurality found that a reasonable investigation had been performed, yet still remanded the case for a pretext inquiry. [FN136] His final criticism of the plurality opinion was that in addition to giving too little guidance on the issue of public employee free speech, the opinion created more questions on the issue and creates further legal uncertainty for public employers. [FN137] For example, he noted the opinion failed to answer how the reasonable supervisor is to determine whether the speech was protected speech. [FN138] The plurality also left unanswered the issue of whether the determination by the reasonable supervisor was to be reviewed as a question of law or of fact. [FN139] Finally, the plurality failed to anticipate what should be done if the employer's investigation ultimately proved to have been unreasonable. [FN140] E. The Dissent Justice Stevens began the dissent by reminding the Court that "[t]his is a free country." [FN141] The dissent adopted the traditional Pickering balance test and applied it to the facts of the case, accepting Churchill's version of the facts as true, reasoning that this is the proper inquiry on review of a motion for summary judgment. [FN142] Justice Stevens concluded that Churchill *913 was fired as a result of protected speech. [FN143] The dissent's main criticism of the plurality's adoption of a procedural due process right in the free speech arena was that it provided less protection of constitutional rights than for "less exalted" rights such as statutory rights. [FN144] The dissent believed that the Connick test should be applied to the facts which the trier of fact ultimately determined, not what the public employer thought was said. [FN145] In so doing, the dissent stated that the public employer would not be burdened if the jury happened to conclude that the content of the speech was different than the employer thought. This is how our judicial system normally works and may well give the public employer incentive to ask the employee what he or she said. [FN146] III. ANALYSIS OF THE DECISION A. The Problem with the New Procedural Due Process Protection The Waters plurality departed from well established precedent and common sense when faced with the issue of how to apply the Connick test where the content of the employee's speech is in dispute. The plurality led the reader to believe that it was expanding First Amendment free speech protection for public employees by developing a procedural due process aspect to the inquiry. However, the addition of this procedural due process inquiry provides not only less constitutional protection to the employee, but no protection to the employee whatsoever. In addition, the opinion is *914 riddled with unanswered questions and is certain to leave lower courts searching for answers, creating a divergence of interpretations. The dissent adopted a straightforward approach and was not fooled into believing that a procedural due process inquiry would increase protection of free speech rights of public employees. The dissent correctly identified that there is no point to the adoption of a procedural due process right if it allows the employer to escape liability merely by undertaking a reasonable investigation. [FN147] Now public employees are afforded the right to a reasonable investigation prior to termination for speech related activities. Although this may sound beneficial to public employees, this leaves public employees in a hopeless situation if it is later revealed that the speech was protected because the employee does not have to be reinstated even if the speech is protected. The plurality failed to safeguard against the risk of erroneous deprivation which is the hallmark of a procedural due process hearing. Surely it is unfair to an employee, such as Ms. Churchill, who legitimately spoke out on a matter of public concern [FN148] to be fired for that speech solely because the Court determined that the employer had undertaken a reasonable investigation. There is no First Amendment protection in this scenario. Procedural due process under the 14th Amendment entitles a person to a hearing prior to the deprivation of life, liberty or property. [FN149] Traditionally, public employment was thought to be a privilege, and not a property right. Therefore, no procedural due process protection is afforded to a public employee unless the public employment rises to the status of a property right. [FN150] In this case, Ms. Churchill did not have a property interest [FN151] in her continued employment because she was an at-will *915 employee and could be fired for any reason at any time. However, she did have a liberty interest not to be terminated for exercising her constitutional right to free speech. [FN152] Since Ms. Churchill had a right to a procedural due process hearing, the Court should afford her the same due process hearing which is afforded other persons deprived of a constitutional right at the hands of the government. [FN153] In Mathews v. Eldridge, [FN154] the Court adopted a three part inquiry to be utilized when addressing the issue of whether a pre-termination hearing affords proper due process. First, the court must consider the private interest of the individual affected by the government conduct. Second, the court must gauge the risk of erroneous deprivation under the procedures currently employed, and finally, it must consider the government's interest in the added expense of providing a more comprehensive hearing. [FN155] The procedural due process inquiry set forth in Churchill does not comport with the three factor inquiry set down in Mathews. The plurality's due process test does not take into consideration the second factor, the risk of erroneous deprivation. Here, Ms. Churchill may have engaged in protected speech and should not be terminated. Yet, the Court will permit erroneous deprivation, provided the public employer undertakes a reasonable investigation. This procedure does not reduce the risk of erroneous deprivation. If the employer's investigation was reasonable the employer is completely absolved of liability for wrongful termination, and the employee is left without a job. Thus, Ms. Churchill and all public *916 employees are at risk of erroneous deprivation of constitutional free speech rights under the plurality's new procedural due process inquiry. The plurality argued that in cases where it turns out that an employee was erroneously discharged, the employee could challenge the substantive accuracy of the factual conclusions under state contract law, state statute, or a common law cause of action. [FN156] Ms. Churchill has no contractual cause of action because she is an at-will employee. Even if she did have a contractual arrangement, only the First Amendment or a similar state constitutional provision protects the free speech of Ms. Churchill, not a state statute or common law tort cause of action. Though the state may have a constitutional provision which protects free speech, this avenue may be foreclosed to the employee depending on how the state has interpreted this part of its constitution. For instance, the state may interpret its constitution under the guidance of federal decisions thus not affording any further protection than currently provided under the First Amendment. An employee fired erroneously after the employer undertakes a reasonable investigation is left with no avenue of relief. Therefore, it is likely that an employee such as Ms. Churchill will be foreclosed from pursuing other state created avenues of relief. This will no doubt have a chilling effect on the speech of public employees. [FN157] Second, the plurality in its discussion regarding the factual dispute, only looked to the version as told by Perkins-Graham. [FN158] The Court should not be determining which version of the facts is true. Traditionally, when there is a dispute over genuine issues of material fact, the granting of summary judgment is improper and the factual dispute is resolved by the trier of fact, either the judge or jury, [FN159] and the facts are construed in the *917 light most favorable to the non-moving party. [FN160] Here Ms. Churchill has stated a cause of action; there is a dispute about the content of her speech, and the district court and Supreme Court are determining the content of the speech. This is a factual question: What did Ms. Churchill say? The trier of fact is given the job of sorting through the competing versions of what was said, to determine the credibility of the speakers and to reach a conclusion as to the content of the speech based on every day life experience. This was not allowed to happen in this case because the Court took it upon itself to determine the content of Ms. Churchill's speech. This is clearly erroneous under the Federal Rules of Civil Procedure. [FN161] Finally, the plurality's opinion is unclear about what speech Ms. Churchill was actually fired for when it stated that according to the statements of Perkins-Graham, "Davis and Waters would have been justified in firing Churchill ... [but] there remains the question of whether Churchill was actually fired because of those statements, or because of something else." [FN162] Under the analysis of the plurality, the employer was justified for firing Churchill for these statements either because they were not on a matter of public concern; or if the statements were on a matter of public concern they were too disruptive; or finally because although the statements were later found to be on a matter of public concern the employer undertook a reasonable investigation. Therefore, the remand of the case for a pretext inquiry is unnecessary since there is no need to determine if Churchill was fired for a protected reason. Thus, as Justice Scalia points out, the addition of the pretext inquiry is "superfluous" since the Court has already determined that Ms. Churchill's termination was proper. [FN163] The plurality departed from the traditional Pickering balancing test by adopting a procedural due process element in this area. The application of the Pickering balance test, which was developed to take into account the competing interests of the public employee as a citizen in speaking out on matters of public concern and the interests of the government employer in promoting efficiency [FN164] is all that is needed in this case, as the dissent *918 pointed out. [FN165] It seems obvious that the test should be applied to what the speech actually is, since this is the speech that is either protected as on a matter of public concern or not. Under the plurality test, speech will not be protected adequately. Employees will fear speaking out regarding policies and practices of their government offices which would indeed be on a matter of public concern, because all the employer needs to do is undertake a reasonable investigation to be insulated from liability for wrongful deprivation of constitutional rights. Thus the problem with this new procedural due process protection is that it is no protection at all. Free speech of public employees has come full circle to the days of Justice Holmes. [FN166] B. Impact on the Lower Courts As Justice Scalia forcefully pointed out, the plurality opinion left open many unanswered questions regarding the proper application of this new, unprecedented due process right in the area of public employee free speech. [FN167] Perhaps the most troubling question is who should determine whether the employer's investigation was reasonable or not. Should this be a question of law for the judge to determine or should the jury determine this as a question of fact? The lower courts may decide that this should be a question of law, given that the Court has mandated that the determination of whether the speech is on a matter of public concern is a question of law. [FN168] Alternately, the lower courts might deem this more a question of fact, allowing the juries to bring together their relative experiences to determine what is reasonable and what is not reasonable. In any case, the Court has not mandated any guidelines. As Justice Scalia stated, these " l oose ends are the inevitable consequence of judicial invention and the Court will spend decades trying to improvise the limits of this new First Amendment protection ...." [FN169] C. Resolution of These Problems The Pickering and Connick tests should be applied to the facts as the trier of fact finds them to be when there is an issue regarding the content of *919 a public employee's speech. Once the content is determined, the judge then determines as a matter of law whether the speech is on a matter of public concern. If the speech is determined to be on a matter of public concern, the next task is to balance the competing interests of the employer and the employee just as the Court required prior to Waters. Since the Court did not apply the Connick test to what the speech actually was, lower courts will apply the test to the facts as the employer found them to be. Lower courts should be cautioned to carefully scrutinize the employer's inquiry process and only in limited circumstances find the employer's investigation to be reasonable. In other words, the reasonable inquiry should be a detailed factual inquiry, not simply a cursory review of the events surrounding the speech. For instance, an appropriate standard to judge the reasonableness of an employer's investigation would be whether the employer actually determined the content of the speech. In this limited instance the employer has conducted a reasonable inquiry, and any termination would be justified as long as the speech was not on a matter of public concern. However, if the employer determines the exact content of the speech and the speech later turns out to be protected, then the employer runs the risk of liability for wrongful termination of an employee who engaged in protected activity. [FN170] Usage of this strict approach will take away the enormous power which the plurality has given to public employers to determine what the content of an employee's speech was, and whether or not it is protected speech and to fire employees accordingly. CONCLUSION In the interest of simplicity and the protection of public employees free speech rights, the Court should abandon the adoption of this version of a procedural due process requirement and allow the fact finder to perform its function of determining the content of the speech. The adoption of this due process element is incorrect and as shown will have detrimental effects on the free speech rights of public employees and on the lower courts that must apply it. The Court must realize this mistake and remedy it before the public employer's new found power destroys what little First Amendment free speech rights public employees currently enjoy. The Court has adopted a novel due process procedure which will have detrimental effects on the free speech rights of public employees. The free speech of public employees should be protected whether the government is *920 acting as the sovereign or as an employer. The speech in either case is important to public debate on issues, especially in a form of self-government such as ours, [FN171] which affect the citizens of the United States. The voting population is already wary of the government, and now the silencing of public employees will increase this suspicion. In order to remedy this problem, the Court should either abandon its present concept of due process or implement the standard due process procedures which have been used for the past two decades. FN[FN1]. See Note, Protecting At-Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith, 93 HARV. L. REV. 1816, 1817 (1980) (discussing employment law as it relates to the private sector). FN[FN2]. The First Amendment to the Constitution of the United States provides in pertinent part that "Congress shall make no law ... abridging the freedom of speech ...." U.S. CONST. amend. I. FN[FN3]. Hudgens v. NLRB, 424 U.S. 507, 511 (1976) (holding that there is no First Amendment speech protection on privately owned property where state action is not present); see also Developments in the Law--Public Employment, 97 HARV. L. REV. 1611, 1756-71 (1984); Lieberwitz, Freedom of Speech in Public Sector Employment: The Deconstitutionalism of the Public Sector Workplace, 19 U.C. DAVIS. L. REV. 597 (1988). FN[FN4]. See, e.g., Adler v. Board of Educ., 342 U.S. 485, 492 (1952) (holding that a school system may deny public employment to individuals who held memberships in organizations advocating the overthrow of the government). The Court stated that: [the teachers] have no right to work for the State in the school system on their own terms. [The teachers] may work for the school system upon the reasonable terms laid down by the proper authorities of [the State]. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not. Id. at 492. FN[FN5]. McAuliffe v. Mayor of New Bedford, 29 N.E. 512, 517 (1892). FN[FN6]. Id. at 517-18. FN[FN7]. Keynishian v. Board of Regents, 385 U.S. 589, 605 (1967) (holding unconstitutional a state statute prohibiting Communist party members from becoming state-employed teachers). FN[FN8]. 391 U.S. 563 (1968). FN[FN9]. Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). FN[FN10]. 461 U.S. 138 (1987). FN[FN11]. Connick, 461 U.S. at 147, 148 (stating that "whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement as revealed by the whole record"). The Court further stated that "the inquiry into the protected status of speech is one of law, not fact." Id. at 148. FN[FN12]. 114 S.Ct. 1878 (1994). FN[FN13]. Id. at 1891. FN[FN14]. Id. at 1893 (Scalia, Kennedy, Thomas, concurring) FN[FN15]. 114 S.Ct. 1878 (1994). FN[FN16]. See supra note 4 and accompanying text. FN[FN17]. See Keynishian v. Board of Regents, 385 U.S. 589, 605-606 (1967); Pickering v. Board of Educ., 391 U.S. 563 (1968); Perry v. Sindermann, 408 U.S. 593, 597 (1972); Branti v. Finkel, 445 U.S. 507, 515- 516 (1980). FN[FN18]. 344 U.S. 183 (1952). FN[FN19]. Id. at 191. FN[FN20]. Shelton v. Tucker, 364 U.S. 479, 490 (1960) (holding that the "statute's comprehensive interference with associational freedom goes far beyond what might be justified in the exercise of the State's legitimate inquiry into the fitness and competency of its teachers"). FN[FN21]. 385 U.S. 589 (1967). The Court explicitly rejected "the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable ...." Id. at 600. The Court struck down on First Amendment grounds a state statute which required the removal of state teachers who made or committed "treasonable" or "seditious" utterances or acts. Id. at 609. FN[FN22]. Id. at 604. The Court stated, referring to the importance of speech in the classroom, that "[t]he Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues ...."' See also JOHN STUART MILL, ON LIBERTY (1859) (stating that the "peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it ....") (The First Amendment is meant to protect free speech and to arrive at the truth. In order to do so opinions and speech cannot be silenced.) FN[FN23]. 391 U.S. 563 (1968). FN[FN24]. Id. at 568. FN[FN25]. Id. at 564-67, 575-78. FN[FN26]. Id. at 568. FN[FN27]. Id. at 570. FN[FN28]. Id. at 572. FN[FN29]. See Paul Ferris Soloman, Note, The Public Employee's Right of Free Speech: A Proposal for a Fresh Start, 55 U. CIN. L. REV. 449 (1986) (listing these factors). FN[FN30]. Pickering, 391 U.S. at 569-570. FN[FN31]. Id. at 570, n.3. The Court stated that "[i]t is impossible to conceive of some positions in public employment in which the need for confidentiality is so great that even completely correct public statements might furnish a permissible ground for dismissal." FN[FN32]. Id. at 570, n.3. FN[FN33]. Id. at 572-573. FN[FN34]. 391 U.S. at 573. FN[FN35]. See Soloman, supra note 29, at 453. FN[FN36]. Pickering, 391 U.S. at 571-72. FN[FN37]. Id. at 572. FN[FN38]. 408 U.S. 593 (1972). FN[FN39]. Id. at 594. FN[FN40]. Id. at 596. The Court stated: [The government] could not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to 'produce a result which (it) could not command directly.' Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L. Ed. 2d 1460. Such interference with constitutional rights is impermissible. Id. at 597. FN[FN41]. 429 U.S. 274 (1976). FN[FN42]. Id. at 282. In addition other complaints not specifically listed in the termination letter to Mr. Doyle, there were other confrontations at the school, including the slapping of another teacher in the course of an argument, complaining to the cafeteria workers about the lack of spaghetti he was served, and referring to students as "sons-of-bitches." Id. FN[FN43]. Id. at 283. FN[FN44]. Id. at 276. FN[FN45]. Mt. Healthy, 429 U.S. at 285-286. The Court stated: The difficulty with the rule enunciated by the District Court is that it would require reinstatement in cases where a dramatic ... incident ... is on the minds of those responsible for the decision to rehire, and does indeed play a part in that decision even if the same decision would have been reached had the incident not occurred. The constitutional principle at stake is sufficiently vindicated if such employee is placed in no worse a position than if he had not engaged in the conduct. A borderline or marginal candidate should not have the employment question resolved against him because of constitutionally protected conduct. But that same candidate ought not be able, by engaging in such conduct, to prevent his employer from assessing his performance record and reaching a decision not to rehire on the basis of that record, simply because the protected conduct makes the employer more certain of the correctness of the decision. Id. at 286. FN[FN46]. Id. at 287. FN[FN47]. Id. FN[FN48]. 439 U.S. 410 (1979). FN[FN49]. Id. at 415-16 (1979). FN[FN50]. Id. at 412, 413. FN[FN51]. Id. at 413. The Court quoted the District Court opinion: "[T]he primary reason for the school district's failure to renew [Ms. Givhan's] contract was her criticism of the policies and practices of the school district ...." FN[FN52]. Id. FN[FN53]. Id. at 415-16. The Court stated that "[t]he First Amendment forbids abridgment of the 'freedom of speech.' Neither the Amendment itself not our decisions indicate that this freedom is lost to the public employee who arranges to communicate privately with his employer rather than spread his views before the public. We decline to adopt such a view of the First Amendment." FN[FN54]. Id. at 415 n.4. Specially the Court stated: [S]triking the Pickering balance in each context may involve different considerations .... Private expression, however, may in some situations bring additional factors to the Pickering calculus. When a government employee personally confronts his immediate superior, the employing agency's institutional efficiency may be threatened not only by the content of the employee's message but also by the manner, time and place in which it is delivered. Id. at 415. FN[FN55]. Soloman, supra note 29, at 458. FN[FN56]. See supra note 26 and accompanying text. FN[FN57]. 461 U.S. 138 (1983). FN[FN58]. Id. at 147. The Court held "that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matter only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken ... in reaction to the employee's behavior." FN[FN59]. For criticism of the Connick decision, see Mike Harper, Note, Connick v. Myers and the First Amendment Rights of Public Employees, 16 HASTINGS COMM. & ENT. L. J. 525 (1994); Peter C. McCabe, Note, Connick v. Myers: New Restrictions on the Free Speech Rights of Government Employees, 60 IND. L.J. 339 (1984); Soloman, supra note 29; Note, Public Employees and the First Amendment: Connick v. Myers, 15 LOY. U. CHI. L.J. 293 (1984). FN[FN60]. 461 U.S. at 148. FN[FN61]. Id. at 139. FN[FN62]. Id. at 155. The questionnaire, reproduced in Appendix A of the Court's opinion, read as follows: Please take the few minutes it will require to fill this out. You can freely express your opinion WITH ANONYMITY GUARANTEED. *** 1. How long have you been in the Office? 2. Were you moved as a result of the recent transfers? 3. Were the transfers as they effected [sic] you discussed with you by an superior prior to the notice of them being posted? 4. Do you think as a matter of policy, they should have been? 5. From your experience, do you feel office procedure regarding transfers has been fair? 6. Do you believe there is a rumor mill active in the office? 7. If so, how do you think it effects [sic] overall working performance of A.D.A. personnel? 8. If so, how do you think it effects [sic] office morale? 9. Do you generally first learn of office changes and developments through rumor? 10. Do you have confidence in and would you rely on the word of: Bridget Bane Fred Harper Lindsay Larson Joe Meyer Dennis Waldron 11. Do you ever feel pressured to work in political campaigns on behalf of office supported candidates? 12. Do you feel a grievance committee would be a worthwhile addition to the office structure? 13. How would you rate office morale? 14. Please feel free to express any comments or feelings you have. THANK YOU FOR YOUR COOPERATION IN THIS SURVEY. FN[FN63]. Id. at 141. FN[FN64]. Id. at 142. FN[FN65]. Id. at 141-42. FN[FN66]. Id. at 147-148. FN[FN67]. Id. at 148. The Court further stated: Nor did Myers seek to bring to light actual or potential wrongdoing or breach of public trust ... [i]ndeed, the questionnaire, if released to the public, would convey no information at all ... [t]hese questions reflect one employee's dissatisfaction with a transfer and an attempt to turn that displeasure into a cause celebre. Cf. Comment, Freedom of Speech in the Public Workplace: A Comment on the Public Concern Requirement, 76 CALIF.L.REV. 1109, 1118 (1988). FN[FN68]. 461 U.S. at 149. FN[FN69]. Id. at 150. FN[FN70]. Id. at 153. FN[FN71]. Id. at 153. FN[FN72]. Id. at 154. The Court stated: "The limited First Amendment interest involved here does not require that [the State] tolerate action which [it] reasonably believed would disrupt the office, undermine ... authority, and destroy close working relationships." FN[FN73]. Id. at 151. FN[FN74]. 483 U.S. 378 (1987). FN[FN75]. Id. at 384 FN[FN76]. Id. at 380. FN[FN77]. Id. at 386. FN[FN78]. The Court stated that "[D]ebate on public issues should be uninhibited, robust, and wide-open, and ... may well include vehement, caustic, and sometimes unpleasantly sharp attack on government and public officials." Id. at 387. FN[FN79]. Id. at 384. FN[FN80]. Id. at 391. FN[FN81]. See, e.g., Richard Hiers, First Amendment Speech Rights of Government Employees: Trends and Problems in Supreme Court and Fifth Circuit Decisions, 45 Sw. L.J. 741, 756 (1991). FN[FN82]. See, e.g., Richard Hiers, Public Employees' Free Speech: An Endangered Species of First Amendment Rights in Supreme Court and Eleventh Circuit Jurisprudence, 5 U. FLA. J.L. & PUB POL'Y 169, at n.486 (1993). FN[FN83]. Connick, 461 U.S. at 148. FN[FN84]. Id. at 150. FN[FN85]. Id. at 152. FN[FN86]. Id. at 153. FN[FN87]. Mt. Healthy, 429 U.S. at 287. FN[FN88]. Id. FN[FN89]. Connick, 461 U.S. at 152. The Court stated that legitimate reasons may include "the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action." FN[FN90]. Pickering, 391 U.S. at 570-73. FN[FN91]. 114 S.Ct. 1878 (1994). FN[FN92]. Id. at 1889. FN[FN93]. Id. at 1882-83. FN[FN94]. Id. at 1882. FN[FN95]. Id. FN[FN96]. Id. at 1883. FN[FN97]. Id. FN[FN98]. Id. FN[FN99]. Id.; see Brief of the Petitioner 17, 18. In a published opinion, 731 F.Supp. 311 (1990), the district court denied Churchill's motion for summary judgment on the grounds that due process was not denied because the employee handbook did not create a property interest in continued employment. FN[FN100]. Churchill v. Waters, 977 F.2d 1114 (1992). The court held: that when a public employer fires an employee for engaging in speech, and that speech is later found to be protected under the First Amendment, the employer is liable for violating the employee's free-speech rights regardless of what the employer knew at the time of termination. If the employer chooses to discharge the employee without sufficient knowledge of her protected speech as a result of an inadequate investigation into the employee's conduct, the employer runs the risk of eventually being required to remedy any wrongdoing whether it was deliberate or accidental. Id. at 1127. FN[FN101]. Id. at 1121. The court stated, "There can be no doubt that when questioning the hospital's violation of state nursing regulations as well as the quality and level of nursing care it provides its patients, the nurse is speaking about matter of public concern." Id. at 1122. FN[FN102]. 977 F.2d at 1123. FN[FN103]. Id. at 1121. FN[FN104]. Waters v. Churchill, 114 S.Ct. 1878 (1994). Examples of the conflict include Wulf v. City of Wichita, 883 F.2d 842, 858 (10th Cir.1989) (rejecting the argument of the defendant that the content of the letter was false and malicious); Sims v. Metropolitan Dade County, 972 F.2d 1230, 1234 (11th Cir.1992) (holding that review of the version of facts which the employer believed to be true was not a violation of procedural due process). FN[FN105]. 114 S.Ct. at 1889. FN[FN106]. Id. at 1886. The Court stated that "all we hold today is that the propriety of a proposed procedure must turn on the particular context in which the question arises--on the cost of the procedure and the relative magnitude and constitutional significance of the risks it would decrease and increase." FN[FN107]. Id.; see Civil Service Comm'n v. Letter Carriers, 413 U.S. 458, 564 (1973) (holding the Hatch Act constitutional, even though it restricts the freedom of association of government employees by forbidding them from "taking an active part in the political management or in political campaigns"). FN[FN108]. 114 S.Ct. at 1886 (stating that "[t]he First Amendment demands a tolerance of 'verbal tumult, discord, and even offensive utterance,' as 'necessary side effects of ... the process of open debate,' (citations omitted) ... [A] government employer may bar its employees from using ... offensive utterances to members of the public ...."). FN[FN109]. Id. (stating that "[e]ven something as close to the core of the First Amendment as participation in political campaigns may be prohibited to government employees"). FN[FN110]. Id. at 1887 (stating that "[w]e have consistently given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large"). FN[FN111]. Id. FN[FN112]. Id. The Court stated: [t]he extra power the government has in this area comes from the nature of the government's mission as employer .... Agencies hire employees to help do those tasks as effectively and efficiently as possible .... When someone who is paid a salary so that she will contribute to an agency's effective operation begins ... to say things that detract from the agency's effective operation, the government employer must have some power to restrain her. FN[FN113]. Id. at 1888. FN[FN114]. Id. FN[FN115]. Id. The Court noted: The government manager would have to ask not what conclusions she, as an experienced professional, can draw from the circumstances, but rather what conclusions a jury would draw later. If she relies on hearsay, or on what she knows about the accused employee's character, she must be aware that this evidence might not be usable in court. FN[FN116]. Id. FN[FN117]. Id. at 1889. The Court stated that "[i]t is necessary that the decisionmaker reach its conclusions about what was said in good faith, rather than as a pretext ...." FN[FN118]. Id. FN[FN119]. Id. FN[FN120]. Id. at 1890. FN[FN121]. Id. FN[FN122]. Id. The Court states, referring only to the version as told by Perkins-Graham, that "Churchill's complaining, if not dealt with, threatened to undermine management's authority in Perkins-Graham's eyes." FN[FN123]. Id. at 1891. The Court states that altough Churchill could have been fired for the "statements outlined above, there remains the question of whether Churchill was actually fired because of those statements, or because of something else." The statements outlined above are those of Perkins-Graham consisting of the statement that it "'wasn't possible' to 'wipe the slate clean' between her [Churchill] and Waters ...." FN[FN124]. Id. FN[FN125]. Id. FN[FN126]. Id. FN[FN127]. Id. at 1892. Justice Souter stated: A public employer who did not really believe that the employee engaged in disruptive or otherwise punishable speech can assert no legitimate interest strong enough to justify chilling protected expression ... [i]mposing liability on such an employer respects the "longstanding recognition that the First Amendment's primary aim is the full protection of speech upon issues of public concern, as well as the practical realities involved in the administration of a government office." FN[FN128]. Id. at 1893. FN[FN129]. Id. (recognizing that certain licensing schemes are necessary to avoid unconstitutional prior restraints). FN[FN130]. Id. FN[FN131]. Id. at 1894. FN[FN132]. Id. FN[FN133]. Id. Justice Scalia pointed this out forcefully with the following: "In the present case, for example, if the requisite 'First Amendment investigation' disclosed that Nurse Churchill had not been demeaning her superiors, but had been complaining about the perennial end-of-season slump of the Chicago Cubs, her dismissal, erroneous as it was, would have been perfectly OK." FN[FN134]. Id. at 1895. FN[FN135]. Id. FN[FN136]. Id. Justice Scalia states "[j]udicial inquiry into the genuineness of a public employer's asserted permissible justification for an employment decision--be it unprotected speech, general insubordination, or laziness--is all that is necessary to avoid the targeting of 'public interest' speech condemned in Pickering.'' FN[FN137]. Id. at 1896. FN[FN138]. Id. at 1897. Justice Scalia points out that "Justice O'Connor creates yet another speech-related puzzlement that government employers, judges and juries must struggle to solve .... It remains entirely unclear what the employer's judgment must be based on." FN[FN139]. Id. FN[FN140]. Id. FN[FN141]. Id. at 1898. FN[FN142]. Id. FN[FN143]. Id. FN[FN144]. Id. In note 2, Justice Stevens refers to NLRB v. Burnup & Sims, 379 U.S. 21 (1964), where the Court held that the employer violated
8 of the National Labor Relations Act when it fired two union organizers in good faith reliance on a report that the two employees threatened to dynamite the employer's place of business if the union lost an upcoming representation election. Justice Stevens stated that "[t]he plurality does not explain why First Amendment rights should receive any lesser protection then the statutory right at issue in Burnup & Sims.'' Id. FN[FN145]. Id. at 1899. Justice Stevens stated: The First Amendment assures public employee that they may express their views on issues of public concern without fear of discipline or termination as long as they do so in an appropriate manner and at an appropriate time and place. A violation occurs when a public employee is fired for uttering speech on a matter of public concern that is not ... disruptive ... [t]he violation does not vanish merely because the firing was based upon a reasonable mistake about what the employee said. FN[FN146]. Id. at 1900. FN[FN147]. Id. at 1898. FN[FN148]. It is hard to imagine that a nurse speaking about the prospect that inadequately trained nurses may be stationed in the OB/GYN department of a hospital would not be deemed a matter of public concern. This is a matter of public concern to the patients who seek treatment at the hospital; a mother about to deliver a child wants to have a nurse who is adequately trained in obstetrical care at her side, not a nurse from the radiology department. FN[FN149]. U.S. CONST. amend. XIV,
1, states in pertinent part: "nor shall any State deprive any person of life, liberty or property, without due process of law ...." FN[FN150]. Bishop v. Wood, 426 U.S. 341 (1976) (stating that employment at will under state law does not confer a property right upon the employee); but see Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (holding that state law providing for only "for cause" termination does confer a property right). FN[FN151]. Board of Regents v. Roth, 408 U.S. 564 (1972) (holding that an untenured assistant professor did not have a legitimate claim of entitlement to continued employment to entitle him to a procedural due process hearing). FN[FN152]. See Perry v. Sindermann, 408 U.S. 583 (1972). In addressing the issue of whether an at-will employee's lack of contract or tenure, taken alone, defeats a claim that the nonrenewal of the contract violated the First Amendment the Court stated: For at least a quarter-century, this Court has made clear that even though a person has no 'right' to a valuable governmental benefit and event though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. Id. at 597. FN[FN153]. For an excellent review of due process rights of public employees, see Developments in the Law--Public Employment, 97 HARV. L. REV. 1611, 1780-1800 (1984). FN[FN154]. 424 U.S. 319 (1976). FN[FN155]. Id. FN[FN156]. 114 S.Ct. 1878, 1890 (1994). FN[FN157]. Id. at 1899; see also Keynishian, 385 U.S. at 603, where the Court stated that "[w]hen one must guess what conduct or utterance may lose him his position, one necessarily will steer far wider of the unlawful zone ...." See Comment, Constitutional Law--First Amendment--Freedom of Speech--Public Employees--Connick v. Myers, 30 N.Y.L. SCH. L. REV. 417, 438-42 (1985) (discussing the chilling effect of giving employers deference in its decision of whether employee speech is in fact disruptive to governmental efficiency). FN[FN158]. Id. at 1890. FN[FN159]. Id. at 1898; see also FED. R. CIV. P. 56(c), which states in pertinent part: summary judgment should be rendered if "the pleadings, depositions, answers to interrogatories, and admissions on file ... show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FN[FN160]. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242. The Court stated that "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." FN[FN161]. See supra note 159. FN[FN162]. 114 S.Ct. at 1891. FN[FN163]. Id. at 1895. FN[FN164]. Pickering, 391 U.S. at 568. FN[FN165]. Waters, 114 S.Ct. at 1897. FN[FN166]. McAuliffe v. Mayor of New Bedford, 29 N.E. 517, 517 (Mass. 1892) where Justice Holmes stated that "[t]he petitioner may have a constitutional right to talk politics, but he had no constitutional rights to be a policeman." FN[FN167]. Waters, 114 S.Ct. at 1897. FN[FN168]. Connick, 461 U.S. at 148, n.7. FN[FN169]. Waters, 114 S.Ct. at 1897. FN[FN170]. Id. at 1900. FN[FN171]. See ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 94 (1948). END OF DOCUMENT