Conduct and Belief: Public Employees' First Amendment Rights to Free Expression and Political Affiliation

Two lines of Supreme Court decisions define the extent to which the Constitution protects public employees1 from dismissal for the exercise of their First Amendment rights.2 The first set of cases governs the employees' right to speak on matters of public concern; the second governs their right to political affiliation. However, the Court has not explained the relationship between these two approaches. As a result, lower courts have had difficulty determining which line of precedent applies to a case in which both overt expression and political affiliation might have influenced an employee's firing. Consider, for example, the following hypothetical. Paula Partisan worked as a mid-level employee in the office of a city mayor. Last November, she supported her boss, Ida Incumbent, in Ida's re-election bid. During the campaign, a local newspaper accurately quoted Paula as saying: "As a member of the Platypus Party of America, I support Ida Incumbent over Carl Contender." Despite Paula's opposition, Carl won in a landslide, and fired Paula in his very first official act as mayor. Believing that her First Amendment rights have been violated, Paula sues. How should the court approach her case? Either or both of the two lines of cases noted above might govern Partisan v Contender. The first line, beginning with Pickering v Board of Education,3 measures the extent of an employee's right