                            [J-77-2019] [MO: Mundy, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


 RACHEL L. CARR                                  :   No. 3 MAP 2019
                                                 :
                                                 :   Appeal from the Order of the
               v.                                :   Commonwealth Court at No. 380
                                                 :   MD 2017 dated June 12, 2018,
                                                 :   which reversed the adjudication of
 COMMONWEALTH OF PENNSYLVANIA,                   :   the State Civil Service Commission,
 DEPARTMENT OF TRANSPORTATION                    :   entered August 1, 2017, at Appeal
 AND COMMONWEALTH OF                             :   No. 29058.
 PENNSYLVANIA, STATE CIVIL SERVICE               :
 COMMISSION                                      :   ARGUED: September 12, 2019
                                                 :
                                                 :
 APPEAL OF: PENNSYLVANIA                         :
 DEPARTMENT OF TRANSPORTATION                    :


                                CONCURRING OPINION


JUSTICE WECHT                                                  DECIDED: May 19, 2020
       In Pickering v. Board of Education, 391 U.S. 563 (1968), the United States

Supreme Court addressed the issue of employment consequences for speech by a public

employee. In that seminal case, voters in an Illinois district had approved a December

1961 bond issue for construction of new schools. Pickering, 391 U.S. at 565. In 1964,

the Board of Education (“the Board”) twice proposed associated tax increases, and the

teachers’ organization and superintendent both expressed support for the second of

these, support that was reported in the local newspaper. That newspaper also published

a letter to the editor, authored by high school teacher Pickering, that was, “basically, an

attack on the [Board’s] handling of the 1961 bond issue proposals and its subsequent

allocation of financial resources between the schools’ educational and athletic programs.

It also charged the superintendent of schools with attempting to prevent teachers . . . from
opposing or criticizing the proposed bond issue.” Id. at 566.1 Pickering was fired for

writing and submitting the letter. The Board based its decision to fire Pickering upon its

belief that the letter contained falsehoods, impugned the Board and school administrators,

disrupted the school community, and caused dissension and controversy among teachers

and administrators. Id. at 567. The Illinois state courts declined to credit Pickering’s First

Amendment claim, reasoning that “his acceptance of a teaching position in the public

schools obliged him to refrain from making statements about the operation of the schools

‘which in the absence of such position he would have an undoubted right to engage in.’”

Id.

       The Supreme Court first addressed the Illinois courts’ rationale for resolving the

First Amendment claim. The Court noted that it has previously rejected the premise that

“teachers may constitutionally be compelled to relinquish the First Amendment rights they

would otherwise enjoy as citizens to comment on matters of public interest in connection

with the operation of the public schools in which they work.” Id. at 568. However, the

Court also recognized that the government has an interest as an employer in regulating

the speech of its employees that differs from the government’s interest in regulating the

speech of the general public.



1        The following are excerpts from Pickering’s letter: “To illustrate further, do you
know that the superintendent told the teachers, and I quote, ‘Any teacher that opposes
the referendum should be prepared for the consequences.’” Pickering, 391 U.S. at 576.
“That’s the kind of totalitarianism teachers live in at the high school, and your children go
to school in.” Id. at 576-77. “To sod football fields on borrowed money and then not be
able to pay teachers’ salaries is getting the cart before the horse.” Id. at 577. “The
taxpayers were really taken to the cleaners.” Id. “As I see it, the bond issue is a fight
between the Board of Education that is trying to push tax-supported athletics down our
throats with education, and a public that has mixed emotions about both of these items .
. . .” Id. at 578. “I must sign this letter as a citizen, taxpayer and voter, not as a teacher,
since that freedom has been taken from the teachers by the administration.” Id.



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       In balancing those interests, the Court looked to the letter, which it described as

consisting of criticism of the allocation of funds between educational purposes and

athletics and of the superintendent’s efforts to prevent information about the tax increase

from being made public. Id. at 569. The Court determined that the letter was not directed

at any of Pickering’s co-workers or anyone in his school, so there were no issues of

disruption in the workforce or insubordination with immediate supervisors. Id. at 569-70.

The Court rejected the idea that critical statements on issues of public importance could,

standing alone, provide adequate grounds for dismissal.2 Id. at 570.

       The Court also noted that the topic on which the Board and Pickering disagreed

— the operations of the school — was of general public interest. Because the issue was

subject to a public vote, free and open debate was necessary in order to inform voters.

Id. at 571-72. Because teachers would be the members of the community most informed

about these issues, it was “essential that they be able to speak out freely on such

questions without fear of retaliatory dismissal.”3 Id. at 572. Finally, the Court found that

the statements were critical of a public employer on a matter of public interest, but did not

affect the employee’s performance of daily duties or the operation of the public employer.

Given those circumstances, the Court concluded that the Board’s interest in limiting the




2      The Court allowed that some positions may be of such confidential nature “that
even completely correct public statements might furnish a permissible ground for
dismissal. Likewise, positions in public employment in which the relationship between
superior and subordinate is of such a personal and intimate nature that certain forms of
public criticism . . . would seriously undermine the effectiveness of the working
relationship.” Pickering, 391 U.S. at 570 n.3.
3       The Court noted that Pickering’s letter erroneously reported the amount spent on
athletics. However, the Board could have corrected that information. Further, the
information was not “so closely related to the day-to-day operations of the schools that
any harmful impact on the public would be difficult to counter because of the teacher’s
presumed greater access to the real facts.” Pickering, 391 U.S. at 572.


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employee’s speech was no greater than “its interest in limiting a similar contribution by

any member of the general public.” Id. at 573.

       The Court recognized that free debate on matters of public importance is at the

core of the right to free speech secured by the First Amendment.               Therefore, had

Pickering’s comments been made by a non-employee, the Board would only have a

cause of action when “such statements are shown to have been made either with

knowledge of their falsity or with reckless disregard for their truth or falsity.” Id. The Court

concluded that, “absent proof of false statements knowingly or recklessly made by him, a

teacher’s exercise of his right to speak on issues of public importance may not furnish the

basis for his dismissal from public employment.” Id. at 574.

       The Supreme Court revisited the issue in Connick v. Myers, 461 U.S. 138 (1983).

Summarizing the rule of Pickering and its progeny, the Court stated that, if the employee’s

speech “cannot be fairly characterized as constituting speech on a matter of public

concern . . . government officials should enjoy wide latitude in managing their offices,

without intrusive oversight by the judiciary in the name of the First Amendment.” Id. at

146. Consequently, a review of the context and content of a given statement is necessary

to determine whether it involves a matter of public concern. Id. at 147-48. When the

employee’s speech is related to a matter of public concern, then a court must balance the

employer’s “interest in the effective and efficient fulfillment of its responsibilities to the

public” with the employee’s interest in speech. Id. at 150. In other words, the public

employer’s “burden in justifying a particular discharge varies depending upon the nature

of the employee’s expression.” Id.

       Myers was an assistant district attorney. When Myers was notified that she was

being transferred to a different section within the office, she opposed the move and met

with her supervisors to discuss the transfer and other issues. Id. at 140-41. One of the




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supervisors indicated that other members of the office did not share Myers’ concerns, so

Myers prepared a questionnaire to survey her co-workers on issues such as transfers,

office morale, grievance procedures, and pressure to work on political campaigns. Myers

distributed the questionnaire to fifteen co-workers. Myers was fired for refusing to accept

the transfer and for insubordination reflected in distribution of the questionnaire.4 Myers

sued, alleging that she was fired for exercising her right to free speech. Id. at 141.

       The Court determined that the majority of the questionnaire related to internal

office issues because the questions were neither designed to inform the public about the

office’s failure to discharge its public duties nor intended to expose wrongdoing.

However, the Court concluded that the question about work on political campaigns could

be construed as an issue of public concern given then-recent case law noting “that official

pressure upon employees to work for political candidates not of the worker’s own choice

constitutes a coercion of belief in violation of fundamental constitutional rights.” Id. at

149.

       Having found that Myers’ speech touched on an issue of public concern, the Court

moved on to balance the interests of Myers and the District Attorney’s Office. The Court

recognized that Myers’ speech did not impede her ability to perform her job. However,

given the employer’s contention that Myers’ questionnaire amounted to insubordination,

the Court considered whether it interfered with working relationships. The Court held that

deference should be afforded to an employer’s judgment in predicting disruption in the

workplace because it is not necessary “for an employer to allow events to unfold to the

extent that the disruption of the office and the destruction of working relationships is

4      The questions included: “From your experience, do you feel office procedure
regarding transfers has been fair?” “Do you have confidence in and would you rely on the
word of: [named supervisors?]” “Do you ever feel pressured to work in political campaigns
on behalf of office supported candidates?” “How would you rate office morale?” Connick,
461 U.S.at 155-56.


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manifest before taking action.” Id. at 152. The Court also considered that Myers’ speech

occurred in the workplace and arose in the context of an employment dispute. Taking all

of those circumstances into account, the Court concluded that Myers’ discharge was not

a violation of her First Amendment rights. Id. at 154.

      In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Court further clarified that a court

first must determine “whether the employee spoke as a citizen on a matter of public

concern.” Id. at 418. If not, then there is no viable First Amendment claim. If the

employee did speak on a matter of public concern, a court then must determine “whether

the relevant government entity had an adequate justification for treating the employee

differently from any other member of the general public.” Id. In this second inquiry, a

court must balance “the individual and societal interests that are served when employees

speak as citizens on matters of public concern and . . . the needs of government

employers attempting to perform their important public functions.” Id. at 420.

      Ceballos was a deputy district attorney.           After being alerted to potential

discrepancies in an affidavit used to support a search warrant, Ceballos investigated the

issue. When that investigation did not satisfy his concerns, Ceballos wrote a memo

explaining the issues and recommending that the case be dismissed. Id. at 414. When

the office moved forward with the prosecution, the defense called Ceballos to testify about

his concerns at a hearing on a motion to challenge the warrant. Alleging that subsequent

adverse employment consequences were retaliation for his testimony, Ceballos sued.

The Court determined that Ceballos’ statements were made pursuant to his duties as an

assistant district attorney. Therefore, the Court held “that when public employees make

statements pursuant to their official duties, the employees are not speaking as citizens

for First Amendment purposes, and the Constitution does not insulate their

communications from employer discipline.” Id. at 421.




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      In Sacks v. Department of Public Welfare, 465 A.2d 981 (Pa. 1983), this Court

expanded upon the balancing of interests prescribed by the second part of the

Pickering/Connick inquiry. We explained that, once it is established that the employee’s

speech involves a matter of public concern, there is “a calculus of injury” that must be

considered. Id. at 988. We identified a number of factors that must be considered,

including the public importance of the employee’s speech. As the public importance

increases, the employer’s burden to demonstrate an injury that justified disciplining an

employee increases. As the public importance of the speech decreases, so too does the

employer’s burden. Id. at 988-89.

      Reviewing this line of cases, it becomes clear that the first inquiry is whether the

employee’s speech addresses a matter of public concern. Here, Carr’s original post to

the closed Facebook group read as follows:

      Rant: can we acknowledge the horrible school bus drivers? I’m in PA
      almost on the NY border bear [sic] Erie and they are hella scary. Daily I get
      ran off the berm of our completely wide enough road and today one asked
      me to t-bone it. I end this rant saying I don’t give a flying shit about those
      babies and I will gladly smash into a school bus.
Brief for Appellant at 6. As other members of the group responded to Carr’s original post,

Carr made these additional responsive statements:

      0 fucks

      And that’s my problem? They broke traffic law, which I’m abiding and I’m
      in the wrong Get fucked. What world do you live in that I’d deliberate [sic]
      injure myself in stead of somebody else. Didn’t call myself a hero

      Transportation . . . road laws. Right

      No I’m saying you don’t care about the random fucks that drive your kids
      and are you serious? Haha

      Department of Transportation . . . that means road laws. Not worrying about
      your kids that are probably your cities issue



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       Your children and your decision to chance them with a driver you’ve never
       been a passenger with is your problem. A vehicle pulls out in front of me or
       crosses the yellow line, that’s their problem. A sedan, school bus or water
       truck. You’re [sic] kids your problem. Not mine

       I care about me
Id. at 7. The State Civil Service Commission concluded that it was “at a complete loss to

find any reasonable public interest in a rant about harming children or a bus driver.

[Carr’s] remarks do not provide any educational information to the public or serve to inform

them about any public matter.” Adjudication, 10/23/2017, at 18.5

       The Commonwealth Court disagreed. It held that “Carr’s speech touched on the

safety of schoolchildren and the traveling public,” which it deemed a matter of public

concern. Carr v. Pa. Dep’t of Transp., 189 A.3d 1, 13 (Pa. Cmwlth. 2018). I would find

that the Commonwealth Court erred in that holding. “Whether an employee’s speech

addresses a matter of public concern must be determined by the content, form, and

context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at

147-48. Further, a court “can not ‘cherry pick’ something that may impact the public while

ignoring the manner and context in which that statement was made or that public concern

expressed.” Miller v. Clinton Cty., 544 F.3d 542, 550 (3d Cir. 2008). That is exactly what

the Commonwealth Court did here. The court overgeneralized Carr’s expressions of

personal frustration to find a matter of public concern. The problem with this approach is

that almost any statement can be connected to a matter of public concern if viewed

broadly enough. The Commonwealth Court ignored the context of the statements and

method of communication, both of which reveal that Carr was not speaking on a matter

of public concern, but merely venting her personal frustration.


5      In case the speech had even “an inkling of public interest,” the Commission went
on to address the second part of the Pickering/Connick line of cases and weighed the
employer’s and employee’s interests. Adjudication at 18. The Commission found that
disruption to the workplace weighed in favor of the employer. Id. at 18-19.


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       For that reason, were I writing on a blank slate, I would reverse the Commonwealth

Court upon that basis and not reach the second part of the Pickering/Connick inquiry.

However, oddly enough, the Department of Transportation ultimately chose not to

challenge the Commonwealth Court’s conclusion that Carr’s speech addressed a matter

of public concern. Instead, the Department has elected to focus upon the second part of

the Pickering/Connick inquiry.6

       Because the issue I would hold to be determinative was not raised and preserved

for this Court, and because the Majority ably addresses the second Pickering/Connick

inquiry, I join the Majority’s resolution of the case.

       To the Majority’s position, I would add that a public employee’s speech on social

media may raise additional concerns for a public employer. While Pickering’s speech

was in a local newspaper, Myer’s speech was limited to the district attorney’s office, and

Ceballos’ speech was in the district attorney’s office and the courtroom, a public

employee’s speech on social media has the potential to be broadcast worldwide within a

very short time span. See Grutzmacher v. Howard Cty., 851 F.3d 332, 345 (4th Cir. 2017)

(“[A] social media platform amplifies the distribution of the speaker’s message — which


6       In the first question this Court granted for review, the Department concedes that
Carr’s speech was on a matter of public concern. See Maj. Op. at 8 (“Is the
Commonwealth Court’s decision in conflict with the U.S. Supreme Court’s rulings . . .
which allow a government employer to terminate an employee on the basis of their
speech, even when it touches upon a matter of public concern . . . ?”). The Department’s
second question concerns whether Carr’s speech involved a matter of public importance.
See id. (“Did the Commonwealth Court err as a matter of law by failing to give sufficient
weight to the public importance, or lack thereof, of Carr’s Facebook comments, as
required by Pickering and its progeny?”). Public importance is relevant to the factors
identified in Sacks, to be considered in the second part of the Pickering/Connick inquiry.
See id. at 16, 22-23. As the Majority details, the Department only argues public
importance in the context of balancing the employer’s and employee’s interests. See id.
at 15-17. Therefore, the Department has waived the question of whether Carr’s speech
actually touched upon a matter of public concern (the first part of the Pickering/Connick
inquiry).


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favors the employee’s free speech interest — but also increases the potential, in some

cases exponentially, for departmental disruption, thereby favoring the employer’s interest

in efficiency.”) (quoting Liverman v. City of Petersburg, 844 F.3d 400, 407 (4th Cir. 2016)).

The breadth and speed of transmission is not necessarily within the employee’s control.

See Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 462-63 (3d Cir. 2015) (case in which

a teacher’s blog posts that were critical of student resulted in the school district receiving

requests from over 200 parents who did not want their children in the teacher’s class and

the story of the blog posts was covered by major news networks and national press). As

this case demonstrates, social media commentary, even posted during non-working

hours, is not immune to adverse employment consequences. Rather than posting without

consideration of consequences, public employees should give deliberate thought to their

social media use, and public employers should provide clear guidelines in this regard.

       Justice Dougherty joins this concurring opinion.




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