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
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
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.
