Preserving Pickering

In the aftermath of Charlie Kirk’s assassination, the terminations of employees across dozens of industries and geopolitical environments shocked Americans into wondering whether they had workplace speech rights at all. Indeed, the promise of workplace speech freedom has been narrowing for decades—even for public employees, who enjoy more protections than private employees thanks to the Supreme Court’s landmark 1968 decision Pickering v. Board of Education. Pickering held that the First Amendment prevents a public employer from summarily dismissing employees based on private speech regarding matters of public concern. Although Pickering’s protections have been narrowed and although they formally apply to public employees alone, they offer more security than private sector employees ordinarily receive. Consequently, some private employers—most notably many private universities—have voluntarily adopted a First Amendment framework informed by Pickering. The post-Kirk terminations served as a stress test that simultaneously affirmed the continued relevance of Pickering analysis and revealed its growing vulnerabilities. On the one hand, many of the public employees who were fired for Kirk-related speech critiqued their terminations using arguments built on Pickering’s framework and they later reached settlements with their former employers. At the same time, the manner in which employees’ private speech was weaponized against them at work shows that Pickering’s protections have been endangered by decades of doctrinal drift as well as recent transformations in technology. Those flaws in Pickering analysis have not been resolved by the Kirk-related settlements and they leave Pickering’s framework vulnerable to strategic manipulation by malicious third parties. Addressing this problem is of the utmost urgency precisely because Pickering affects more than just the public employers and employees who are directly governed by the First Amendment. Accordingly, after explaining Pickering’s gradual deterioration, this Article concludes by identifying three factors that can help mitigate that deterioration if they are incorporated into Pickering analysis: consideration for the circumstances of the speech, the proactive steps taken by the employee to reduce harm, and the implications for the employer. These factors will allow courts to preserve both the employers’ interests and the employees’ expressive freedoms that are, equally, protected by Pickering.