By 1967, however, the Court would note that "the major premise of Adler has been rejected."  In its place was a new premise: that the government ought not to be able to do indirectly what it cannot do directly.  The Court took the position that public employment cannot be conditioned on a surrender of constitutional rights.  The problem for the Court then became how to balance the government's interest in maintaining an efficient public workplace against the individual employee's interest in free expression.

Pickering v Board of Education considered the case of a public school teacher fired for writing a letter to a newspaper critical of the local school board.  In ordering the teacher reinstated, the Court found that a public employee's statements on a matter of public concern could not be the basis for discharge unless the statement contained knowing or reckless falsehoods, or the statements were of the sort to cause a substantial interference with the ability of the employee to continue to do his job.

Mt. Healthy v Doyle also involved a fired school teacher.  Doyle lost his job after calling a radio station disc jockey to complain about a memo sent to school teachers concerning a new teacher dress code.  Because Doyle had given the district other reasons for terminating him (such as giving "the finger" to two students), the Court remanded the case for a determination as to whether Doyle would have been fired even if he hadn't engaged in the protected expressive activity of calling the radio station.  If he would have been fired anyway, the termination could stand, the Court said.

Connick (1983) and McPherson (1987) both discuss the important issue of what constitutes speech "of public concern."  The issue is important because, as the Court says in Connick, if speech does not relate to a matter of public concern, "absent the most unusual circumstances" the discharge will not present a First Amendment question for court review.  In Connick, a 5 to 4 majority of the court concluded that speech about the internal operation of a district attorney's office is generally not of "public concern."  Moreover, the Court held, distribution of a questionaire by the discharged employee raising questions about management of the office could be reasonably seen as sufficiently damaging to close working relationships to justify discharge.  In Rankin, on the other hand, a 5 to 4 majority concluded that the statement "If they go for him again, I hope they get him," made immediately following news of Hinckley's attempt to assassinate President Reagan, was speech on a matter of public concern.  The Court ordered the deputy constable's reinstatement, noting that the remark--made only to a fellow employee--was not likely to affect either her ability to perform her largely clerical duties in the constable's office or public confidence in the office.

Branti (1980) is one of a series of cases in which the Court has prevented discharges based on the political beliefs of employees.  Branti was one of six assistant public defenders fired from a county defender's office simply because they were Republicans and the newly appointed County Defender was a Democrat.  The Court noted that sometimes may be permissible to use political affiliation as a basis for hiring and discharge decisions (for example, no one would doubt the right of the President to hire only Cabinet officers or speechwriters that share his or her political affiliation), but said that assistant county defenders did not hold the type of decisionmaking power that made political affiliation an appropriate consideration.  Ten years later, in Rutan v Republican Party of Illinois (a case involving the staffing of Illinois prisons), the Court extended protection for political beliefs to initial hiring decisions, as well as decisions relating to promotions and transfers.

In 2006, in Garcetti v Ceballos, the Court considered the First Amendment claim brought by a deputy district attorney in the Los Angeles DA's office who had been transferred and denied a promotion because of his statements to supervisors criticizing the credibility of statements made in an affidavit prepared by a deputy sheriff.  The Court, 5 to 4, rejected the employee's claim, holding that the First Amendment does not protect public employees for "statements made pursuant to their official duties."  According to Justice Kennedy, the critical fact in the case was that "his expressions were made pursuant to his duties as a calendar deputy.  That consideration--the fact that Ceballos spoke as a prosecutor fulfilling his responsibility to advise his supervisor about how to proceed with a pending case--distinguishes Ceballos' case from those in which the First Amendment provides protection against discipline.".

TESTS FOR EVALUATING 1ST AMENDMENT CLAIMS OF EMPLOYEES