692
Scalia, J., concurring in judgment
be fired on the basis of an erroneous factual judgment, with no legal recourse—which is what happened here. Churchill also had a noncontractual right: the right not to be dismissed (even from an at-will government job) in retaliation for her expression of views on a matter of public concern. That right was not violated, since she was dismissed for another reason, erroneous though it may have been. The issue before us has nothing to do with according the deprivation of a right the ordinary degree of protection; it has to do with expanding the protection accorded a government employee's public interest speech from (1) protection against retaliation, to (2) protection against retaliation and mistake.
III
The approach to this case adopted by Justice O'Connor's opinion provides more questions than answers, subjecting public employers to intolerable legal uncertainty. Despite the difficulties courts already encounter in distinguishing between protected and unprotected speech, see, e. g., Miller v. California, 413 U. S. 15, 22 (1973), and in determining whether speech pertains to a matter of public concern, compare O'Connor v. Steeves, 994 F. 2d 905, 915 (CA1), cert. denied, 510 U. S. 1024 (1993), with Gillum v. City of Kerrville, 3 F. 3d 117, 120-121 (CA5 1993), cert. denied, 510 U. S. 1072 (1994), Justice O'Connor creates yet another speech-related puzzlement that government employers, judges, and juries must struggle to solve. The new constitutional duty to provide certain minimum procedural protections is triggered when "an employment action is based on what an employee supposedly said, and a reasonable supervisor would recognize that there is a substantial likelihood that what was actually said was protected," ante, at 677. But on what does the "reasonable supervisor" base his judgment as to whether "there is a substantial likelihood that what was actually said was protected?" Can he base it upon the report of what was said? Seemingly not, since otherwise Justice O'Connor
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