A.  The terms of this balance are remarkably vague, as is the ultimate protection given to the speech of public employees. It is therefore necessary to take some care to speak in a way that is likely to be protected.
    B.  The two parts of the balance in Pickering v. Board of Education are:

        1.  The employee's interest "as a citizen in commenting upon matters of public concern."
        2.  And the employer's interests "in promoting the efficiency of the public services it performs through its employees." 391 U.S. at 574.

    C.  Under the first part of the balance, the speech of public employees that more closely resembles the speech of citizens receives greater protection.

        1.  Use of a traditional forum for public debate, such as a letter to the editor, discussions with a reporter, or comments at a public meeting, enhance the degree of protection. Pickering itself held that a public employee could not be discharged for sending a letter to the editor.

            a.  In Perry v. Sindermann, 408 U.S. 593, 594-95 (1972), the Supreme Court suggested that the same treatment should be given to a teacher's statements before legislative committees and in a paid newspaper advertisement.
            b.  Other cases have also protected employees from retaliation based on statements to the press. In Watters v. City of Philadelphia, 55 F.3d 886, 897-99 (3d Cir. 1995), the civilian manager of an employee assistance program for the Philadelphia Police Department made statements quoted in a newspaper article about the lack of formal policies for the program. The court held that he could not be fired for these statements.

        2.  Likewise, casual conversation of public employees, which does not differ in substance from conversations among private individuals, also receives protection.

            a.  An interesting case is Rankin v. McPherson, 483 U.S. 378 (1987), in which a secretary working in a sheriff's office was discharged for remarks made to a fellow employee following an assassination attempt on President Regan. The secretary, who was black, expressed surprise that the attempt was made by a white person, since she thought the policies of the Regan administration did not favor black people. She concluded the conversation with the statement, "if they go for him again, I hope they get him." This statement was overheard by a third employee in the office who told the sheriff and who in turn fired the secretary.

            b.  After finding that the quoted statement was part of a larger conversation about government policy, and so a matter of public concern, the Supreme Court held that any disruptive impact from it was minimal because it was made in a private conversation. 483 U.S. at 386-87. Although the Court emphasized the minimal effect on the employer's interest in efficient operation of the sheriff's office, this followed from the informal nature of the secretary's statement. As Justice Powell said in his separate opinion, "it will be an unusual case where the employer's legitimate interests will be so great as to justify punishing an employee for this type of private speech that routinely takes place at all levels in the workplace." 483 U.S. at 393.

            c.  Four dissenters, however, focused on the precise nature of the secretary's quoted statement and found it not to be protected, both because it was not on a matter of public concern and because it was inconsistent with the operation of the sheriff's office. 483 U.S. at 394-402 (Scalia, J., dissenting).

        3.  The protection of public employees starts to erode when they make statements under color of official authority.

            a.  In Moore v. City of Mountain Home, 72 F.3d 568, 570 (8th Cir. 1995), a police officer was demoted for writing a letter on departmental letterhead complaining that sheriff's deputies were violating a policy requiring suspects to be arrested who had blood alcohol levels above the legal limit. The court found that a letter sent outside the chain of command could damage relations between the police department and the sheriff's office.

            b.  By contrast, in Latino Officers Association v. Safir, 1997 West Law 426099 (S.D.N.Y. 1997), the court denied a police department the power to require officers to obtain approval in advance of any speaking engagement when the officers were not speaking in an official capacity.

        4.  Law enforcement agencies also have considerable discretion over the uniforms worn by their officers and the occasions on which uniforms may be worn. This control, however, is not unlimited.

            a.  Thus in Immigration and Naturalization Service v. FLRA, 855 F.2d 1454, 1466 (9th Cir. 1988), the court upheld the power of the INS to prohibit officers from wearing a union insignia on their uniform.

            b.  Also, in Thomas v. Whalen, 51 F.3d 1285, 1290-91 (6th Cir. 1995), cert. denied, 116 S. Ct. 518 (1996), a police lieutenant was properly disciplined for appearing before an NRA group while wearing official insignia and identifying his rank. The court recognized the lieutenant's right to debate the merits of gun control, and to identify his employer, but not his right to use his uniform and his rank to advocate his views.

            c.  Again by contrast, in Latino Officers Association v. New York, 1997 West Law 473972 (S.D.N.Y. 1997), the court recognized the right of police officers to march in uniform in support of an Hispanic organization not officially recognized by the department, when the department allowed such activity on behalf of another Hispanic organization that it did recognize.

    D.  On the opposite side of the balance, concerned with maintaining the efficiency of a public agency, employees must take care to avoid unnecessarily disruptive speech.

        1.  The degree of disruption must be greater than what ordinarily results from criticism of a public agency, even criticism from a knowledgeable insider. This kind of disruption is just a consequence of the speech about government that the First Amendment is designed to protect.

        2.  Disruption of the close working relationship between law enforcement officers is another matter. This factor weighs heavily in favor of regulating speech because of "the need for maintaining a close working relationship in quasi-military organizations like police departments." Busby v. City of Orlando, 931 F.2d 764, 774 (11th Cir. 1991).

            a.  In Morris v. Crow, 117 F.3d 449, 458 (11th Cir. 1997), an employee of a sheriff's department was properly disciplined for using profanity in criticizing a superior in the presence of co-workers.

            b.  So, too, in Dunn v. Carroll, 40 F.3d 287, 292 (8th Cir. 1994), an administrative assistant was fired for calling the district fire chief a "liar" at a public meeting. Under Connick v. Myers, this form of speech was so disruptive that it transformed a debate on an issue of public concern into a caustic personal attack that was wholly unprotected.

            c.  One court has even gone so far as to find a press release and public statements by police officers on the discriminatory impact of stop-and-frisk tactics to be unprotected. In Byrd v. Gain, 558 F.2d 553 (9th Cir. 1977), cert. denied, 434 U.S. 1087 (1978). The court reasoned that the First Amendment does not allow police officers "publicly to hector their department and its superior officers by language calculated to inflame the public or part of it against the police and to affect adversely the morale and discipline of the department." 558 F.2d at 554.

        3.  As officers seek higher positions, criticism of their superiors can be relevant to promotion decisions.

            a.  Thus a lieutenant was properly suspended with pay for criticizing the policies of the police chief in a letter to him. The police chief legitimately found the letter insubordinate in tone and inconsistent with the loyalty required of his immediate subordinates. Campbell v. Towse, 99 F.3d 820, 829-30 (7th Cir.), cert. denied, 117 S. Ct. 1254 (1997).

            b.  In another case, a police captain was properly reassigned after his complaints about and investigation of the police chief, made ostentatiously at the police station, severely undermined morale in the department. Bryson v. City of Waycross, 888 F.2d 1562, 1567 (11th Cir. 1989).

            c.  The same result was also reached in German v. Kansas City, 776 F.2d 761 (8th Cir. 1985), cert. denied, 479 U.S. 813 (1986). The president of the local firefighters union was denied a promotion to a management position based on a letter sent to city and department officials that amounted to a personal attack on the fire chief.

        4.  Speech that adversely affects the reputation of a law enforcement agency, again apart from the ordinary effects of criticism, also can be the basis for disciplinary action.

            a.  In Jefferson v. Ambroz, 90 F.3d 1291, 1297 (7th Cir. 1996), an officer was fired for assuming the identity of a gang member on a radio call-in show and speaking out against the police department and the court system in terms offensive to the public.

            b.  Rights to free speech and free association have also been limited as applied to racist organizations. In McMullen v. Carson, 754 F.2d 936, 939 (11th Cir. 1985), a clerical employee in a sheriff's office was properly discharged for appearing as a recruiter for the Klu Klux Klan on local television.

            c.  What constitutes racist speech that is subject to discipline, however, can depend upon fine distinctions. For instance, in Tindle v. Caudell, 56 F.3d 966, 970 (8th Cir. 1995), the appearance of officers in black face at a private party did not amount to protected speech on an issue of public concern. But in Berger v. Battaglia, 779 F.2d 992, 998-1002 (4th Cir. 1985), cert. denied, 476 U.S. 1159 (1986), a public performance of early twentieth century music in black face was held to be fully protected speech.

            d.  Disclosures of confidential information can also be grounds for discipline, on such obvious matters as the contents of criminal investigation and even in one case for publication of confidential information about labor union negotiations. Heil v. Santoro, 1997 West Law 102451 (S.D.N.Y. 1997).

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