Concerning Behavior: Do a Public Employee’s Free Association Claims Share the Public Concern Requirement of Free Speech Claims?

Abstract

On September 28, 2018, the Third Circuit Court of Appeals held, in Palardy v. Township of Millburn, that it would not apply the public concern test from Connick v. Myers to public employees’ First Amendment free association claims. The Circuits are split on whether to apply the public concern test: the Second, Fourth, Sixth, and Seventh Circuits apply the test; the Fifth and Eleventh Circuits do not apply it; and the Ninth and Tenth Circuits take hybrid approaches. This comment argues that the Third Circuit mischaracterized its holding, and its approach resembles the hybrid approach of the Tenth Circuit more than the Fifth Circuit it claimed to follow. This comment further argues that, although the Third Circuit’s approach is an improvement on the circuit courts that apply the public concern test, a better approach would have the court adopt a strict scrutiny approach to resolving free association claims by public employees.