On the Road to Garcetti: 'Unpick'ering Pickering and Its Progeny

Abstract

This article examines the foundational cases dealing with public employment free-speech rights and the evolution of the United States Supreme Court's public employment free-speech jurisprudence. In each case since Pickering v. Board of Education - the seminal case on public employment-free speech jurisprudence - the Court has attempted to navigate and clarify the nuances of the Pickering balancing test - the balancing of the employee's free speech rights against the public employer's interests in operational efficiency. This article reveals through comprehensive examination of these cases that the Court in its interpretation of the Pickering balancing test established to protect employees, has steadily taken away sub silentio the protection of public employees' free speech rights to the pro-employer era that reigned mostly pre-Pickering.

Keywords: free speech, First Amendment, speech, public employment, public, right, speech, employment, employer, government, liability, employee, operational efficiency, balancing test, Pickering, teacher, public school, district, school, education, Connick, Waters, Garcetti, Ceballos, Mount Healthy