The Supreme Court has held that in order for the actions of a public employee to qualify for protection under the First Amendment’s Petition Clause, it must relate to a public concern. In the case of Borough of Duryea v. Guarniere, the Court ruled that the action of filing a union grievance related to a police chief’s alleged improper termination and changes in duties was not a protected activity and, thus, actions taken by the employer in response to the was not retaliation for exercising First Amendment rights.
The Court explained that government employees can act as citizens and, when discussing public concerns, could engage in petitioning the government and that such actions would be protected under the First Amendment. However, when an employee’s complaint relates to the employee’s own duties, that is not a matter of public concern and, thus, not protected. As the Court explained, “The right of a public employee under the Petition Clause is a right to participate as a citizen through petitioning activity, in the democratic process. It is not a right to transfer everyday employment disputes into matters for constitutional litigation in the federal courts.”
The Court explained in determining whether a particular activity was of public or private concern, the whole record regarding the content, form and context of the petition needed to be reviewed and the forum in which it was raised needed to be considered.