July 4, 2022

Volume XII, Number 185

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July 01, 2022

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U.S. Supreme Court Extends “Public Concern” Test To Lawsuits Brought By Public Employees Under The First Amendment’s Petition Clause

The U.S. Supreme Court Has provided some much needed guidance on when public employers may violate their employees’ right to petition the government for redress of grievances under the First Amendment.  In order to prove that the government violated his rights under the Petition Clause of the First Amendment, a public employee must now show that his petition related to a matter of “public concern,” as opposed to a private employment grievance.  This standard is substantially the same as the test applied under the Free Speech Clause of the First Amendment.

Writing for six other justices in Borough of Duryea, Pennsylvania v. Guarnieri, Justice Kennedy explained that while courts should not presume that there is always an equivalence between the Speech Clause and the Petition Clause, there is “extensive common ground in the definition and delineation” of the rights protected by the respective clauses justified extending the same “public concern” test to both the exercise of free speech by public employees and their right to petition the government.

The public concern test was first developed to protect the “substantial government interest” in preventing government employees from “constitutionaliz[ing]” the employee grievance process. [and clogging the court system with internal government matters]. Because public employees could readily bring the same claim under either the Speech or Petition Clauses, the Court reasoned that adopting a lower standard for claims brought under the Petition Clause would provide public employees a “ready means…to circumvent the [public concern] test’s protections.” However, the Court explicitly stated that this analysis only applies when a public employee is acting in his capacity as an employee. Rather, “[w]hen a public employee seeks to participate, as a citizen, in the process of deliberative democracy, either though speech or petition, it is necessary to regard the employee as the member of the general public he seeks to be.”

The Court’s full opinion can be found at: http://www.supremecourt.gov/opinions/10pdf/09-1476.pdf  read more

© 2022 BARNES & THORNBURG LLPNational Law Review, Volume I, Number 187
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About this Author

Mark Crandley Litigation Attorney
Partner

Appellate adviser and litigator Mark Crandley is at his best when faced with high-stakes claims that involve issues of critical importance and concern. After nearly two decades of practice, Mark knows what does and does not work. Clients and colleagues alike rely upon him for his judgement and leadership throughout the dispute resolution process.

Mark focuses his practice on appeals, constitutional and government law, commercial litigation, and the resolution of probate disputes. He has represented government entities and businesses in courts across the country, and is valued for...

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