Off the Clock, Not Off the Hook: Public Employees, Private Speech, & the Limits of the Pickering Test

 The First Amendment to the Constitution declares that “Congress shall make no law…prohibiting the free exercise…or abridging the freedom of speech”. [1] Although this clause generally protects regular citizens’ and everyday workers’ right to free speech, the rights of those employed by the government are more limited. There has been a long-standing tension between protecting First Amendment rights for public employees and the need for government employers to manage workplace disruptions. This struggle has been significantly evident in the courts as judges attempt to balance government interests with public employees’ civil rights. On one hand, officials recognize the necessity of a government workplace that refrains from conflicts. However, they also acknowledge the unique and essential role public employees play in serving as an unofficial check on the government, uncovering misconduct within the government, and redressing their grievances. [2]  

This question of public employees’ First Amendment rights is at the heart of Adams v. County of Sacramento (2024). In 2013, Kate Adams, then-Chief of Police for Rancho Cordova, California, sent private text messages containing racist memes to colleagues, claiming to express frustration that someone had shared them with her. The messages were never published or addressed to the public and remained that way for years. However, in 2019, Adams reported one of these same colleagues to the Department of Internal Affairs for unrelated misconduct. [3] In retaliation, this coworker launched a campaign of misconduct complaints against and during an internal investigation, disclosed the 2013 text messages containing the racist memes and Adam’s messages to the officials. This led to another investigation, but this time into Adams, of which the information pertaining to it was later leaked, resulting in a media article highlighting the messages in 2021. Ultimately, these events forced Adams to resign gracefully from the position to avoid further public scrutiny or being shamefully fired. After resigning in 2021 following the investigation, Adams sued the County, arguing that the First Amendment shielded her private, off-duty speech. 

The Ninth Circuit held in Adams v. County of Sacramento (2024) that a public employee's off-duty speech does not warrant First Amendment protection merely because it touches on a controversial topic like racism. Thus, Adams appealed, and the case is currently awaiting a writ of certiorari. The Supreme Court should grant a writ of certiorari in Adams v. County of Sacramento to clarify two unresolved gaps in First Amendment doctrine: how the “public concern” threshold applies to private, off-duty speech that was never intended for public consumption, and whether the Pickering balancing test — as presently constructed — adequately protects public employees from retaliation for speech that occurs entirely outside their official roles. Without intervention, lower courts will continue to reach inconsistent results that will deprive millions of government workers of meaningful constitutional protection.

The United States Courts neglected to offer protections for government employees until 1968. Before then, the courts stood by the rights-privilege distinction, which held that public employment was a privilege, not a right, allowing the government to impose strict conditions on employment, including the restriction of constitutional rights. A clear example of this is seen in the case McAuliffe v. Mayor of New Bedford (1892), in which the Supreme Court of Massachusetts dismissed the right of public employees to criticize their employers and retain employment. [4] Justice Oliver Wendell Holmes is often quoted for his introductory remark to his majority opinion, stating that “a petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman”. [5] 

The shift from the rights-privilege distinction to modern First Amendment doctrine did not happen overnight, nor did it produce a clean, stable framework. Instead, courts dismantled the old doctrine on a case-by-case basis, leaving behind a patchwork of protections that has grown more complicated with each successive decision. The question was no longer whether public employees deserved any First Amendment rights, but rather which speech, under which circumstances, and uttered in which role, would qualify for protection. The answer, as courts have fashioned it, hinges on a series of interlocking judicial tests — tests that, as Adams v. County of Sacramento illustrates, still leave enormous gaps when confronted with speech that is private, off-duty, and stripped of any apparent civic purpose. One of the most foundational tests was established in the case of Pickering v. Board of Education (1968), in which the court held that “statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors”. [6] This protection was later narrowed and specified in Connick v. Myers (1983), in which the Court held that speech of public employees is generally only protected when they speak on matters of public concern, not speech that is merely a personal grievance or causes workplace disruption. [7] Together, these two cases form the Pickering test as they balance each other, weighing an employee’s free speech rights against the government’s interest in efficiency. 

Despite the groundwork laid in these cases, another question remains: do their First Amendment rights extend to their private lives when they're not on the clock? The case Garcetti v. Ceballos (2006) answers this clearly, asserting that speech by a public employee is only protected if it is engaged in as a private citizen, not if it is expressed as part of their job [8]. The Court justifies this opinion by stressing that when applying the Pickering test, they have a responsibility to try to view the public employee in comparison to a regular citizen. If a public employee is expressing grievances in relation to their employment responsibilities, then “there is no relevant analogue to speech by citizens who are not government employees” because it doesn’t concern anyone outside of the scope of that occupation. [9] The Court further highlighted the emphasis that precedents place on supplying government employers with sufficient discretion to manage their office environments. In other words, government employers have a reasonable and “heightened interest in controlling speech made by an employee”. [10] 

These precedents and opinions are what guided the Ninth Circuit in its decision for Adams v. County of Sacramento. When the court examined the content, form, and context of Adams’s private text messages, it concluded that they clearly reflected personal frustration rather than civic engagement, which did not meet the public concern threshold. However, the novel question of intent arises because the messages she wrote were initially private and are said to have been misinterpreted. The Pickering test has yet to specify what protections, if any, govern speech by a public employee that is both genuinely private and ultimately exposed against the speaker’s will. Does it matter that Adams never intended the speech to be public? Does intent factor into the “public concern” analysis? 

These questions and structural gaps stem, in part, from the fact that the term “public concern” has never been precisely defined by the Supreme Court. The hesitation that the Court might reasonably feel about endorsing the Ninth Circuit’s reasoning in Adams is warranted precisely because the test it applied rests on an indeterminate foundation. Without a clear definition of “public concern,” courts cannot consistently determine which speech warrants constitutional protection and which does not—a problem that the Adams fact pattern makes impossible to ignore.

The Pickering test is what scholars would call a categorical test; a legal method used to determine whether an action or case fits the specific offence under a federal law, rather than focusing on the actual conduct of the defendant themselves. An issue tends to arise when categorical tests are used conjointly with the First Amendment due to the aspect of “learnability”. The term “learnability” in this case refers to “whether the judiciary can be successfully taught how to determine whether speech falls inside or outside an established category”. [11] When a test lacks efficacy or “learnability,” it will yield unclear analyses and, in cases involving its use, lead to unpredictable and conflicting lower court decisions, creating uncertainty regarding civil rights. What specifically makes Pickering “unlearnable” is the fact that its application is based solely on the content of the speech in question. This factor inherently makes the test unfeasible to learn because there is “nowhere to turn for a definition of which issues concern the public”. [12] Some may turn to the media or news to determine what matters exist under the scope of public concern, but this reported information does not necessarily reflect the concerns of the entire public. Since there is no direct reference list of topics that are matters of public concern, there becomes an “ever-changing definition of public concern”. The news constantly changes each day; what is a headline today may not be the same headline tomorrow. This reality further decreases the predictability of the Pickering test. 

Moreover, the language of the Pickering test remains problematic. In the case of Pickering v. Board of Education, the Court stated that the teacher’s comments in the letter were protected as they were public statements upon issues that were currently the subject of public attention. However, this ruling implies that only speech that has already been discussed is protected. It is also unclear how much of the “public” must be aware of or interested in the speech in question before it entirely becomes a “matter of public concern” under a content-based assessment. As a matter of fact, all speech is the concern of at least one member of the public: the government employee speaker. However, given the track record of the courts, it is clear that the public employee’s interest alone is not enough to ensure their protection. Furthermore, looking at this test in conjunction with the idea of public-employee speech in relation to workplace disruption, there seems to be an inherent contradiction. If speech is only of public concern when it is about a widely discussed topic or ongoing debate, then it may be inherently disruptive to the work environment. [13]

Even if one accepts that the “public concern” threshold is workable in the abstract, the Pickering balancing test presents a second, independent problem: it is structurally skewed in favor of government employers. Irrespective of whether public employees clear the “public concern” threshold, the balance of the test itself systematically underweights the employee’s interest. The employer faces comparatively less of a burden to justify its actions. In Adams, even if her speech were found to touch on public concern, the Pickering balance would likely tip against her, given the nature of the content— a result that effectively punishes private expression based on its viewpoint rather than its actual impact on government operations.

This structural imbalance is compounded by the test’s failure to account for the manner in which speech is exposed. Pickering was designed for cases in which an employee voluntarily chose to speak publicly about matters related to their employer. It was not designed for the scenario Adams presents, a matter concerning speech that was kept entirely private, disclosed only through the retaliatory conduct of a third party. When the exposure of speech is itself the retaliatory act, applying a framework that ignores the method of disclosure distorts the very balance the test was meant to strike.

Moreover, the test specifically fails to “disentangle generic government employee speech from the distinguishable subset of government employee whistleblowing speech.” [14] The test largely ignores the general public’s interest in government employee speech as well as the duty of public employees to speak on maltreatment or corruption in the inner workings of the government sector. Adams had, after all, initiated an internal affairs complaint against a colleague before her private messages were weaponized against her. The Pickering framework provides no mechanism to account for a situation such as this; as a result, the Ninth Circuit treated the exposure of her private speech as constitutionally inert despite the motive behind it.

To resolve both its own shortcomings and cases such as Adams, the test must be restructured to explicitly weigh the public's interest in government accountability in matters of government employee speech. Canada’s approach to accessing the protection of speech expressly weighs whether the speech involved disclosure of illegal acts or jeopardized public safety, and protects speech that had no measurable impact on the employee’s job performance. [15] This standard should be incorporated into the American analysis. Incorporating such a factor would ensure that the Pickering balance reflects not only the employer’s interest in workplace efficiency, but also the public’s interest in a government workforce that can report misconduct without forfeiting their private lives or jobs.

Defenders of the current Pickering structure contend that the test’s flexibility is its preeminent feature, not an error, and that no rigid alternative can better navigate the genuine tension between free expression and government accountability to the public. [16] They insist that a case-by-case analysis using the test is both unavoidable and necessary for this area of law, where free speech conflicts with the government’s interest in efficiently providing public services. For example, police officers and other high-profile public employees carry institutional authority — their off-duty speech, even when private, can erode public trust in the institutions they represent. Courts have recognized that employees in public-contact roles pose a distinct risk when their speech conflicts with their employer’s public mission. These are legitimate concerns, and they should not be dismissed. However, while we can acknowledge the need for flexibility, it must be understood that a flexible test without clear standards produces inconsistency, which is the core problem in Adams.

The Supreme Court should grant certiorari in Adams v. County of Sacramento and, in its holding, lay the groundwork to take at a minimum, take two corrective steps. First, it should clarify the place of involuntary disclosure of private speech within the Pickering test. Intent matters; a speaker’s reasonable expectation of privacy should not be stripped away because an adversary, a hacker, or any other entity chose to publicize what was never meant to be public. Second, the Court should expressly incorporate the public’s interest in government accountability as an independent factor in the Pickering analysis. It is important to have clauses in place to favor the rights of employees whose speech, whatever its content, was disclosed as part of a whistleblowing activity. Overall, none of these steps requires the Court to abandon the Pickering framework entirely. What they require is a recognition that the framework was designed too loosely and with little regard for the rights of the public employees. The current application of the text has produced results that are both doctrinally incoherent and constitutionally unjust, but Adams allows the Supreme Court to correct these gaps. Public employees serve on behalf of all of us; silencing their private lives in exchange for public service is not a trade the First Amendment was designed to compel.

Edited by Love Patel

Sources

[1] Constitution Annotated. “U.S. Constitution - First Amendment ” Library of Congress. December 15, 1791, https://constitution.congress.gov/constitution/amendment-1/ 

[2] Suzette M. Malveaux, “Is It Time for a New Civil Rights Act? Pursuing Procedural Justice in the Federal Civil Court System,” Boston College Law Review 63, no. 8 (November 2022) 2403–74

[3] Adams v. County of Sacramento, No. 23-15970 (9th Cir. 2025)
[4] McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892)

[5] McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892)

[6] Pickering v. Board of Education, 391 U.S. 563 (1968)

[7] Connick v. Myers, 461 U.S. 138 (1983)

[8] Garcetti v. Ceballos, 547 U.S. 410 (2006)

[9] Garcetti v. Ceballos, 547 U.S. 410 (2006)

[10] Garcetti v. Ceballos, 547 U.S. 410 (2006)

[11] Karin B. Hoppmann, Concern with Public Concern: Toward a Better Definition of the "Pickering / Connick" Threshold Test, 50 Vanderbilt Law Review 993 (2019) 

[12] Karin B. Hoppmann, Concern with Public Concern: Toward a Better Definition of the "Pickering / Connick" Threshold Test, 50 Vanderbilt Law Review 993 (2019) 

[13] Karin B. Hoppmann, Concern with Public Concern: Toward a Better Definition of the "Pickering / Connick" Threshold Test, 50 Vanderbilt Law Review 993 (2019) 

[14] Krotoszynski, Ronald. 2024. “Reforming Pickering to Better Protect Government Employees’ Speech.” Knight First Amendment Institute. 2024. https://knightcolumbia.org/content/reforming-pickering-to-better-protect-government-employees-speech.

[15] Krotoszynski, Ronald. 2024. “Reforming Pickering to Better Protect Government Employees’ Speech.” Knight First Amendment Institute. 2024. https://knightcolumbia.org/content/reforming-pickering-to-better-protect-government-employees-speech.

[16] Ward, Abby. 2024. “In Defense of Pickering: When a Public Employee’s Social Media Speech, Particularly Political Speech, Conflicts with Their Employer’s Public Service” Minnesota Law Review, February 21, 2024. https://minnesotalawreview.org/article/in-defense-of-pickering-when-a-public-employees-social-media-speech-particularly-political-speech-conflicts-with-their-employers-public-service/.