To prevail on his constitutional claim, Kirkland must establish a prima facie case (1) that his supplemental reading list is constitutionally protected speech and (2) that such speech proved to be a substantial or motivating factor in the decision not to rehire him. See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Ferrara v. Mills, 781 F.2d 1508, 1512 (11th Cir. 1986). If Kirkland successfully carries the initial burden, Northside, in order to avoid liability, must then demonstrate by a preponderance of the evidence that it would not have rehired Kirkland even in the absence of the protected speech. See Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576.
Under Connick, unless a public employee's conduct involved a matter of "public concern," examining the propriety of the employer's action under the first amendment is inappropriate. Connick, 461 U.S. at 146-47, 103 S.Ct. at 1690; Eiland v. City of Montgomery, 797 F.2d 953, 955 (11th Cir. 1986); Ferrara v. Mills, 781 F.2d 1508, 1512 (11th Cir. 1986). Although the proper juxtaposition of Pickering, Mt. Healthy and Connick in public employee speech cases has been somewhat unclear, we need not attempt to resolve this question in this case because we hold appellant's claims are based upon freedom of association.
As a threshold issue, the Court must determine, "whether the employee's speech may be 'fairly characterized as constituting speech on a matter of public concern.'" Morgan v. Ford, 6 F.3d 750, 754 (11th Cir. 1993), reh'g en banc denied, 15 F.3d 1099 (1994) (citations omitted); Ferrara v. Mills, 781 F.2d 1508, 1512, 1515 (11th Cir. 1986) (citing Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 1690-91, 75 L.Ed.2d 708 (1983)). In making this determination the Court looks to "the content, form, and context of the given statement, as revealed by the whole record."
Finally, because we find that the speech in question here can be "fairly characterized as constituting speech on a matter of public concern . . ." Ferrara v. Mills, 781 F.2d 1508, 1512 (11th Cir. 1986), we also REVERSE the district court's summary judgment on the First Amendment issue. I. BACKGROUND
Whether such speech relates to a matter of public concern is determined as a matter of law, based upon the content, form and context of the statement. Connick, 461 U.S. at 147, 148, 103 S.Ct. at 1690, 1691; Kurtz, 855 F.2d at 727; Ferrara v. Mills, 781 F.2d 1508, 1515 (11th Cir. 1986). Plaintiff has the burden of showing that her speech involved matters of public concern.
As we recently reiterated, however, "the fact that an employee speaks up on a topic that may be deemed one of public import does not automatically render [her] remarks on that subject protected." Smith, 28 F.3d at 646; see also Hartman, 4 F.3d at 471 (whether speech is of public concern does not turn on the general subject matter of the employee's speech); Colburn, 973 F.2d at 586 ("the fact that the issue could be `interesting' to the community does not make it an issue of public concern."); Callaway, 832 F.2d at 417 (although incidences of sexual harassment in a public school would be of concern to the public, employee's complaints not automatically protected); Ferrara v. Mills, 781 F.2d 1508, 1515 (11th Cir. 1986). We must instead delve deeper into the precise content, form, and context of speech that admittedly may be of some interest to the public.
Third, when both these showings have been made, the Court will apply the balancing test set out in Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), to determine "whether the adverse employment decision was justified." Ferrara v. Mills, 781 F.2d 1508, 1512 (11th Cir. 1986). In Pickering, the Supreme Court stated that the state's interest as an employer requires that the courts "arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."
Whether a plaintiff's speech relates to matters of public concern is a legal question. Ferrara v. Mills, 781 F.2d 1508 (11th Cir. 1986). And courts grant deference to government restrictions on employee speech in order to balance the government employer's legitimate interest with that of the employee.
Therefore, plaintiff satisfies her initial burden of proof by showing that the speech at issue is constitutionally protected. See Ferrara v. Mills, 781 F.2d 1508, 1512-1514 (11th Cir. 1986). The first issue that must be addressed to determine if the employee's speech is constitutionally protected is whether the speech involves a matter of public concern.
The United States Constitution does not guarantee public employees absolute freedom of speech; rather, an employee's speech rights must be balanced against the interests of the public employer in regulating the speech of its employees. Ferrara v. Mills, 781 F.2d 1508, 1512-13 (11th Cir. 1986). In order to determine whether an allegedly retaliatory employment decision violates an employee's free speech rights, the Eleventh Circuit applies a four-part test.