Madyson Hopkins · March 2021
89 Geo. Wash. L. Rev. Arguendo 1
An individual’s right to exercise free speech is one of the most fundamental rights guaranteed by the Constitution. However, individuals who work for the government do not receive the same protections over their speech as private citizens. Their speech is protected to a lesser degree, and if a public employee challenges a silencing of their speech, this action is subject to the Pickering test, a multistep balancing test that is convoluted and inconsistent across federal circuits. As so much of speech is made online through social media, it is even more important that courts utilize a consistent test. This Note discusses the evolution of the Pickering test and looks to its application in modern social media cases. Additionally, this Note argues that a modified Pickering test requiring an “actual disruption” standard of evidence and abandoning the “private citizen” requirement is necessary to clarify the test’s application and to create consistent outcomes.
