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In Defense of Pickering: When a Public Employee’s Social Media Speech, Particularly Political Speech, Conflicts with Their Employer’s Public Service

By Abby Ward. Full Text.

With the rise of social media and the United States’ increasing political polarization, public employees take to social media to post about political issues such as race and policing. But when public employees make posts on political issues in an inflammatory or controversial way, public employers often discipline or fire the employee, fearing disruption and community backlash. The result is First Amendment litigation involving social media speech, an uncharted territory for courts.

When a public employee is disciplined for engaging in political speech on social media, courts usually analyze the employee’s First Amendment claim under the Pickering balancing test. This test weighs the government’s interest in operating an efficient workplace against the employee’s free speech rights as a private citizen. Scholars often critique this analysis, arguing that, when it comes to Internet speech, the test unfairly favors employers and is too uncertain. This Note responds to those arguments and defends the use of the Pickering balancing test as applied to public employee social media speech.

To that end, this Note offers three arguments in support of Pickering’s balancing test. First, the government has a unique interest in sustaining public trust and thus needs some discretion, especially in light of the inherent risks associated with speech on social media. The Pickering analysis properly allows for these considerations while still holding the government accountable. Second, a case-by-case analysis is both unavoidable and necessary for this area of law, where free speech conflicts with the government’s interest in efficiently providing its public services. Furthermore, Pickering may be more predictable than some scholars argue. Third, while Pickering may have some drawbacks, those drawbacks do not warrant changing the legal analysis, particularly at the federal level. While it is always important to review legal analyses as the world evolves, further inquiry reveals Pickering’s test is still an adequate legal standard that should not be altered or replaced even considering the advent of social media.