The threshold prong of this two-part test — the “public-concern” requirement — has proven to be a difficult issue for the federal courts, which have reached widely divergent conclusions. How can a court determine whether speech addresses a matter of public concern?
In Connick, the Supreme Court wrote that a matter of public concern is speech “relating to any matter of political, social, or other concern to the community.”
The Court explained that
“whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record."
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Often the determinative legal issue in public-employee speech cases is the “public concern” requirement. Employers frequently argue that the employee is speaking as
an employee rather than as a citizen. They contend that the employee’s speech is
better characterized as an expression of personal grievance than as a matter of
public importance. Indeed, some courts take a narrow view of the type of employee speech that can be said to touch on matters of public concern. As one federal appeals court explained in a recent decision:
When a public employee’s speech is purely job-related, that speech will not be deemed a matter of public concern. Unless the employee is speaking as a concerned citizen, and not just as an employee, the speech does not fall under the protection of the First Amendment.
