Essentials of the "Pickering Balancing Test”

Essentials of the "Pickering Balancing Test”
Pickering v Board of Education, 391 US 563

The so-called Pickering Test is applied in evaluating the interests of a public employer with the its employees’ right to Free Speech and requires the court’s consideration of the following:

1. Did the individual demonstrate that his or her speech address a matter or matters of public interest and concern?

2. Did the individual demonstrate that his or her speech was a significant or motivating factor in the employer's decision?

3. Did the court balance the interests of the individual commenting on matters of public concern as a citizen and the public employer's interest in "promoting the efficiency of public service?"

An example of this may be found in Council 82, v State of New York, 255 A.D.2d 54, aff'd. 94 NY2d at 329.

In this action Appellate Division ruled that a State department’s rule did not trump an employee’s First Amendment rights. In this case the court sustained an arbitrator determination that Edward Kuhnel, a State correction officer, was not guilty of disciplinary charges alleging that he flew a Nazi flag from the front porch of his home in violation of Department rules.