Pickering Balancing Test
If the government employee speech is protected (does relate to a
matter of public concern and is not engaged in as part of the
employee's official duties), a court will balance the employee’s
interest in expression against the government employer's
interest in the effective and efficient operation of the
government workplace to determine if engaging in an adverse
employment action against the employee as a result of the speech
violates the First Amendment. This analysis weighs the value of
the employee's speech against the adverse impact of the speech
on the government workplace including the employee's
relationship with immediate supervisors and co-workers. In
discussing the balancing test, derived from Pickering v.
Board of Education, 391 U.S. 563 (1968), the Supreme Court
has said, "the state interest element of the test focuses on the
effective functioning of the public employer's enterprise.
Interference with work, personnel relationships, or the
speaker's job performance can detract from the public employer's
function; avoiding such interference can be a strong state
interest."