A.  As the facts of Connick v. Myers reveal, identifying issues of "public concern" can be difficult. Partly this is because everyone wants to believe that their personal grievances are matters of "public concern." But partly also, public employers tend to make decisions about individual employees based on general policies and regulations.

        1.  An issue of public concern cannot be added as an afterthought to what is essentially an individual grievance. Courts will look closely at the context and overall character of the speech in question.
        2.  For example, in Wales v. Board of Education, 120 F.3d 82, 84 (7th Cir. 1997), the court found an employee's memo to her supervisor to be closer to a personal complaint than a matter of public concern, even though it raised an issue in which the public might have been interested, because the memo was addressed )only to her supervisor and not to the public at large.

    B.  An inquiry into "public concern" can be avoided if the speech involves organizing, joining, or leading a union. This follows from the freedom of association under the First Amendment. Smith v. Arkansas State Highway Employees, 441 U.S. 463, 464-465 (1979) (per curiam).

        1.  The same principle prevents patronage decisions - hiring, firing, and promoting public employees based on their party affiliations - in all positions that are neither confidential nor involve policymaking. Elrod v. Burns 427 U.S. 347 (1976).
        2.  As applied to unions, freedom of association protects internal union activities, such as union organizing, membership, and self-governance. The First Amendment requires a public employer to allow a union to exist without retaliation against its members.

            a.  For instance, a police department cannot prohibit police officers from joining a union whose membership includes other kinds of employees. Mescall v. Rochford, 655 F.2d 111 (7th Cir. 1981).
            b.  As the Supreme Court recognized in Smith, however, the First Amendment does not protect collective bargaining. It does not require a public employer to recognize a union as the representative of its employees and to engage in collective bargaining over the terms and conditions of employment.

        3.  A grievance is more likely to be protected speech if it is presented by a union. Two cases have protected employees from retaliation  when they have used a grievance procedure established through collective bargaining. Stellmaker v. DePetrillo, 710 F. Supp. 891, 893 (D. Conn. 1989); Professional Association of College Educators v. El Paso Community College, 730 F. 2d 258, 270 (5th Cir.), cert. denied, 469 U.S. 881 (1984). Although these grievances did not raise issues of public concern, the courts found that invoking the grievance procedure implicated the right to association through the union.

        4.  By contrast, where the grievance is presented by the employee acting alone, and following a procedure established by the employer, courts have been reluctant to find an issue of public concern. Day v. South Park Independent School District, 768 F.2d 696, 700 (5th Cir. 1985), cert. denied, 474 U.S. 1101 (1986); Renfroe v. Kirkpatrick, 722 F.2d 714, 715 (11th Cir.), cert. denied, 469 U.S. 823 (1984).

    C.  In grievances presented by individual employees, it is the subject of the grievance that is decisive. Cases finding no issue of public concern, like Connick v. Myers, involve grievances largely confined to a single employee. Thus a police detective's complaint about workplace smoke was not protected. Smith v. Fruin, 28 F.3d 646, 651 (7th Cir. 1994), cert. denied, 115 S. Ct. 735 (1995). So, too, grievances about leave time and a supervisor's letter of reprimand did not involve matters of public concern. Hom v. Squires, 81 F.3d 969, 974 (10th Cir. 1996).

        1.  In these cases, there was no evidence that other employees shared the grievance of the individual who actually complained.
        2.  Nevertheless this distinction - between individual grievances and collective grievances - does not exactly follow the distinction drawn in Connick v. Myers - between internal office policy and matters of public concern. A collective grievance, shared by all the officers in a police department, say over sick leave, could still be a matter only of internal office policy.

            a.  For instance, in Brown v. City of Trenton, 867 F.2d 318, 322 (6th Cir. 1989, a joint letter of resignation of members of a SWAT team in expressing dissatisfaction with the police chief's leadership qualities was found not to raise issues of public concern.
            b.  Also, in Arvinger v. Mayor and City Council of Baltimore, 862 F.2d 75, 79 (4th Cir. 1988), no issues of public concern were raised by inconsistent statements given by one officer about another officer's use of marijuana, even though the incident did involve two officers instead of one.

    D.  Certain issues are presumptively of public concern. This presumption can be defeated, but it provides another rule of thumb for determining what kind of speech is protected.

        1.  Speech on issues of police protection and public safety generally are of public concern because of the importance of these issues to the public at large.

            a.  For instance, in Gustafson v. Jones, 117 F.3d 1015, 1019 (7th Cir. 1997), complaints about a police department's policy on follow-up investigations and on the investigation of a particular case were held to be matters of public concern.

        2.  Another category of issues presumptively of public concern are those involving discrimination on the basis of race, national origin, sex, or religion. These cases rest not the public policy against discrimination.

            a.  In Givhan v. Western Line Consolidated School District, 439 U.S. 140, 148 n.8 (1979), the Supreme Court held that a teacher's complaints about racial discrimination were a "matter of inherently public concern."

                (1)  Subsequent cases have extended this principle even to denials of discrimination, apparently on the ground that both sides of an issue deserve equal constitutional protection. Thus a teacher's satirical letter to a school newspaper denying charges of sex discrimination was held to be protected in Seemuleer v. Fairfax County School Board, 878 F.2d 1578, 1582-83 (4th Cir. 1989).
                (2)  These cases do not go so far, however, to allow racial insults or sexual harassment to be considered protected speech.

            b.  The policy against discrimination is especially strong in law enforcement. So, for instance, charges of racial discrimination in a sheriff's office, made by a black officer's association, were held to be protected in Cromer v. Brown, 88 F.3d 1315, 1325-26 (4th Cir. 1996).

                (1)  Such charges have been held to be a matter of public concern even when they involved a single employee. Tao v. Freeh, 27 F.3d 635, 639-40 (D.C. Cir. 1994).

            c.  Charges of sexual harassment, however, have not been treated consistently by the courts.

                (1)  Some courts have found these charges to be protected speech, even when they involved a single incident and a single employee, although they also involved an elected official. Azzaro v. Allegheny Co., 110 F.3d 968, 980 (3d Cir. 1997).
                (2)  Other courts have found these charges not to be protected because they did not extend beyond the situation of an individual employee. David v. City and County of Denver, 101 F.3d 1344, 1355-56 (10th Cir. 1996); Morgan v. Ford, 6 F.3d 750, 754-55 (11h Cir. 1994), cert. denied, 114 S. Ct. 2708 (1994).

            d.  In all cases involving charges of employment discrimination, the complaining party also is entitled to statutory protection from retaliation, either for opposing discriminatory practices or for participating in enforcement actions. Title VII of the Civil Rights Act of 1964 confers such protection in § 704(b), 42 U.S.C. § 2000e-3(b), but an employee must follow special administrative procedures to file a claim under this statute.

        3.  Whistle blowing cases also presumptively raise issues of public concern because government employees often are the best - if not the only - source of information about misconduct in public agencies.

            a.  For instance, in O'Donnell v. Yanchulis, 875 F.2d 1059, 1061 (3d Cir. 1989), a police chief's complaints about public officials' attempts to fix traffic tickets was found to be a matter of public concern.
            b.  And in Fikes v. City of Daphne, 79 F.3d 1079, 1084 (11th Cir. 1996), a police officer's report of another officer's misconduct in continuing a high speed chase in which four people were killed was treated as a matter of public concern.

        4.  A finding that speech is on a matter of public concern does not resolve the ultimate issue whether it can form the basis for disciplinary action by the employer. It is still necessary for the court to perform the balancing test of Pickering v. Board of Education.

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