Ford 903 F2d 556 563 8th Cir 1990 speech was protected even if it was motivated

Ford 903 f2d 556 563 8th cir 1990 speech was

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Ford , 903 F.2d 556, 563 (8th Cir. 1990) (speech was protected even if it was motivated by the plaintiff’s self-interest); see generally Connick v. Myers , 461 U.S. 138, 147 (1983) (speech is not protected by First Amendment if the plaintiff speaks merely as an employee upon matters only of personal interest). Determination of whether the plaintiff’s speech addressed a matter of public concern appears to fall exclusively within the province of the court. See Lewis v. Harrison School Dist. , 805 F.2d 310, 312-13 (8th Cir. 1986) (trial court erred in following jury’s finding that the plaintiff’s speech did not address a matter of public concern). b Balancing of Interests Analysis of the “balancing” issue depends upon a variety of factors, which traditionally have included the following: the need for harmony in the workplace; whether the governmental entity’s mission required a close working relationship between the plaintiff and his or her co- workers when the speech in question has caused or could have caused deterioration in the plaintiff’s work relationships; the time, place, and manner of the speech; the context in which the dispute arose; the degree of public interest in the speech; and whether the speech impaired the plaintiff’s ability to perform his or her duties. Shands v. City of Kennett , 993 F.2d 1337, 1344 (8th Cir. 1993); Hamer v. Brown , 831 F.2d 1398, 1402 (8th Cir. 1987); see generally Pickering v. Board of Educ. , 391 U.S. 563, 568 (1968). This balancing process is flexible, and the weight to be given to any one factor depends upon the specific circumstances of each case. Shands v. City of Kennett , 993 F.2d 1337, 1344 (8th Cir. 1993). c Balancing and Jury Instructions Although the balancing process ultimately is a function for the court, Eighth Circuit case law indicates that subsidiary factual issues must be submitted to the jury. For example, in
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McGee v. South Pemiscot School Dist. , 712 F.2d 339, 342 (8th Cir. 1983), the court stated that “[i]t was for the jury to decide whether the [plaintiff’s] letter [to the editor] created disharmony between McGee and his immediate supervisors.” Likewise, in Lewis v. Harrison School Dist. , 805 F.2d 310, 315 (8th Cir. 1986), the Eighth Circuit ruled that it was error for the trial court to
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disregard the jury’s special interrogatory findings on certain balancing issues. In Shands v. City of Kennett , 993 F.2d 1337 (8th Cir. 1993), the court stated that: Any underlying factual disputes concerning whether the plaintiff’s speech is protected . . . should be submitted to the jury through special interrogatories or special verdict forms. For example, the jury should decide factual questions such as the nature and substance of the plaintiff’s speech activity, and whether the speech created disharmony in the work place. The trial court should then combine the jury’s factual findings with its legal conclusions in determining whether the plaintiff’s speech is protected.
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