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On May 11, 2017, the U.S. Court of Appeals for the Sixth Circuit, in Mayhew v. Town of Smyrna, held that the protected status of a public employee’s speech in a First Amendment retaliation claim remains one of law, rather than one of mixed law and fact. In so doing, the Sixth Circuit disallowed jury determinations on the fact-intensive inquiry into the protected status of the employee’s speech. This Comment argues that despite having the invaluable opportunity—as a historically conservative court—to defend the voices of public employees, the Sixth Circuit continued its obliteration of public employees’ right to a jury trial. This Comment further argues that the Sixth Circuit’s decision could leave much of private sector misconduct unreported.


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6 Sep 2022
461 kB



  • Subject
    • Constitutional Law

    • First Amendment

    • Labor and Employment Law

  • Journal title
    • Boston College Law Review

  • Volume
    • 59

  • Issue
    • 9

  • Pagination
    • E. Supp. 83

  • Date submitted

    6 September 2022