Cite as: 511 U. S. 661 (1994)
Scalia, J., concurring in judgment
intentional wrong to liability for mere negligence. What she proposes is, at bottom, not new procedural protections for established First Amendment rights, but rather new First Amendment rights. Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968), did not require government-employer "protection" of "public concern" speech, but merely forbade government-employer hostility to such speech. "[I]t is essential," Pickering said, "that [public employees] be able to speak out freely on such questions without fear of retaliatory dismissal." Id., at 572 (emphasis added). See also Connick v. Myers, 461 U. S. 138, 149 (1983) (same). The critical inquiry for the factfinder in these cases is whether the employment decision was, "in fact, made in retaliation for [the] exercise of the constitutional right of free speech." Perry v. Sinder-mann, 408 U. S. 593, 598 (1972). A category of employee speech is certainly not being "retaliated against" if it is no more and no less subject to being mistaken for a disciplinable infraction than is any other category of speech or conduct.
II
The creation of procedural First Amendment rights in this case is all the more remarkable because it is unnecessary to the disposition of the matter. After imposing the new duty upon government employers, Justice O'Connor's opinion concludes that it was satisfied anyway—i. e., that the investigation conducted by the hospital was "entirely reasonable." Ante, at 680. And then, to make the creation of the new duty doubly irrelevant, it finds that the case must be remanded anyway for a pretext inquiry: whether "petitioners actually fired Churchill not because of the disruptive things she said to Perkins-Graham, but because of nondisruptive statements about cross-training that they thought she may have made in the same conversation, or because of other statements she may have made earlier." Ante, at 682; see also ante, at 682-685 (Souter, J., concurring). Surely this
689
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