Our friends at TGH Litigation discuss how governmental employees don’t lose their free speech rights just because they work for a government employer. They retain some of their First Amendment protections as employees. When disputes arise about government employees’ speech and its impact on the efficiency of the workplace, courts use what are known as the Pickering factors to balance the employee’s First Amendment interests against the interests of the employer in providing an efficient and harmonious workplace. An experienced employment lawyer can help evaluate how these factors apply to your situation and protect your rights. If the plaintiff wins at balancing, then her speech warrants First Amendment Protection. The Eighth Circuit uses six factors in this inquiry:
- the need for harmony in the workplace;
- the closeness of the working relationship between the plaintiff and her co-workers and the potential impact that the speech in question might have on that relationship;
- the time, place, and manner of his speech;
- the context in which the dispute arose;
- the degree of public interest in the speech; and
- whether the speech interfered with the plaintiff’s ability to perform her duties.
Before courts reach the Pickering Factors, a number of threshold issues must first be met. First, it must be established that the plaintiff was speaking on a matter of public concern; second, the plaintiff must establish that she was speaking as a private citizen and not in her capacity as a governmental employee. Finally, courts will not reach balancing if the defendant fails to provide sufficient evidence that there was a disruption to the workplace.
Matters of Public Concern
An employee’s speech touches on matters of public concern when it is a “matter of political, social, or other concern to the community at large.” For example, the sharing of anti-abortion memes has been found to have been speech that touched on a matter of public concern. See Melton v. City of Forrest City, Arkansas, 147 F.4th 896, 902 (8th Cir. 2025). Similarly, politically charged, epithet filled rants have been found to have touched on matters of public concern. See Thompson vs. Central Valley Sch. Dist. No 365, 2025 WL 3753524 (9th Cir. 2025).
As a Private Citizen
When employees speak within the capacity of their official duties, they are not speaking as citizens for purposes of the First Amendment. In Buehrle v. City of O’Fallon, MO, 695 F.3d 807, 812 (8th Cir. 2012), a police officer was tasked with investigating corruption within city officials and presented his conclusions to the board of alderman in a closed session. This speech led to him being passed over for a promotion. In his retaliation claim he failed to meet the threshold inquiry of speaking as a private citizen because the court found his speech stemmed from his official role.
Disruption
After plaintiffs satisfy the threshold requirements, defendants must show that the speech caused workplace disruption. This showing of disruption is a required step before courts will do the balancing test. At this juncture, defendants must plead with specificity, and “vague and conclusory” statements are disfavored. Lindsey v. City of Orrick, 491 F.3d 892, 897-98 (8th Cir. 2007). However, an employer is not required to let disruption materialize and in fact, they can act before the disruption comes to fruition if they have a reasonable suspicion that disruption will occur. Anzaldua v. Ne. Ambulance & Fire Prot. Dist., 793 F.3d 822, 834 n.3 (8th Cir. 2015). If a court finds defendants evidence of disruption sufficient then the court proceeds with the Pickering balancing factors.