Cite as: 511 U. S. 661 (1994)
Souter, J., concurring
lieve it. Under the plurality's opinion, an objectively reasonable investigation that fails to convince the employer that the employee actually engaged in disruptive or otherwise unprotected speech does not inoculate the employer against constitutional liability. A public employer violates the Free Speech Clause, that is, by invoking a third-party report to penalize an employee when the employer, despite the report and the reasonable investigation into it, believes or genuinely suspects that the employee's speech was protected in its entirety or in that part on which the employer purports to rely in taking disciplinary action; or if the employer invokes the third-party report merely as a pretext to shield disciplinary action taken because of protected speech the employer believes or genuinely suspects that the employee uttered at another time.
First Amendment limitations on public employers, as the plurality explains, must reflect a balance of the public employer's interest in accomplishing its mission and the public employee's interest in speaking on matters of public concern. See ante, at 668-675. Where an employer penalizes an employee on the basis of a third-party report of speech that the employer should have suspected, based on the content of the report and the employer's familiarity with the employee and the workplace, to have been constitutionally protected, this balance must reflect the facts that employees' speech on matters of public concern will often (as we said of employees' union activities) "engende[r] strong emotions and giv[e] rise to active rumors," and, critically, that "the example of employees who are discharged on false charges would or might have a deterrent effect on other employees." NLRB v. Burnup & Sims, Inc., 379 U. S. 21, 23 (1964); see also Rankin v. McPherson, 483 U. S. 378, 384 (1987) (" '[T]he threat of dismissal from public employment is . . . a potent means of inhibiting speech' ") (quoting Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 574 (1968)). As the plurality's opinion frankly recognizes,
683
Page: Index Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 NextLast modified: October 4, 2007