Public Employee Free Speech; Is Rankin V. McPherson Still Alive?

This paper tries to predict how the Supreme Court would have treated a case on the first amendment issue given the state of the law on public employee free speech. Of course, whether or not the speech at issue is a matter of public concern will be the crux of the distinction between the two positions the Court has taken, but the analysis also takes into account the balancing test set forth. By breaking down the analysis into predictions of Justice Marshalls opinion, Justice Scalias opinion, Justice Kennedys concurrence in the judgment of the Court, and the opinion of the Court itself, a reasonable forecast as to the future direction of the Court in this area is realized. After the forecast is made, the propriety of the two hypothetical opinions as measured against the precedent of first amendment protection of the public employee is evaluated. There are four conclusions to be drawn from the hypothetical Supreme Court Treatment of the FLRA Federal Labor Relations Authority case. First, the place of speaker motive in the public concern analysis has become less clear. Secondly, subjectivity reigns. Third, racial discrimination, as an issue, is almost per se a matter of public concern, unless it is addressed inappropriately. Finally, speech made in the context of union representation is not per se a matter of public concern. Rather, it is subject to the Pickering- Connick analysis like any other public employee speech.