By: Mary K. McCann
When public employees express views that are detrimental to the
community’s safety, they undermine the government’s effectiveness
in rendering services to society. In turn, when the
government cannot perform its tasks effectively due to an
employee’s speech, it has a right to terminate that employee.
With this in mind, courts must formulate a workable test to
determine whether a government employee’s speech is protected by
the Constitution.
After much debate on this issue, the Supreme Court set forth a
balancing test in Pickering v. Board of Education.
Under the test, courts must balance “the interests 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 . . . .”
The effect on government efficiency is determined by the possible
disruption to the work environment. This test, however,
allows for unacceptable amounts of judicial discretion and causes
inconsistent results by focusing on the wrong factors for
disruption. Two recent decisions in New York, applying the
Pickering Balancing Test, illustrate these
inconsistencies. In Melzer v. Board of Education,
the Second Circuit held that a school had the right to terminate a
teacher who was a member of the North American Man Boy Love
Association (“NAMBLA”). In doing so, it incorrectly denied a
teacher’s constitutionally protected right to speak on a matter of
public concern. In contrast, a federal district court in
Locurto v. Giuliani reinstated members of the New York
City police and fire departments after they were fired for
committing racially offensive acts on a parade float. The
court mistakenly decided that the speech was on a matter of public
concern and that the employees were constitutionally protected in
their actions. The Pickering Balancing Test caused
these inconsistent results and, therefore, should be refined.
This Comment asserts that a disruption to the work environment
occurs when the public employee’s speech would diminish the
government’s reputation and would be dangerous to those who are
directly affected by the speech. These factors must be
analyzed in light of the position the employee holds in the
workplace and the services performed. The content of the
speech is important only to the extent that it poses a danger to
those directly affected by the speech.