Rankin v. McPherson

In contrast, Justice Scalia, dissenting, worried that in this case

the Court significantly and irrationally expands the definition of "public concern"; it also carves out a new and very large class of employees--i.e., those in "nonpolicymaking" positions--who, if today's decision is to be believed, can never be disciplined for statements that fall within the Court's expanded definition.

Scalia departed from the majority on the nature of McPherson's speech. The subject matter alone did not qualify her comment as speech on a matter of public concern, he argued. The statement "I hope they get him" did not relate to self-government, did not constitute part of a public debate, and was not conducive to informed decision making (all criteria from earlier decisions). Her comment was simply violent. Scalia dismissed the conversation preceding the comment as nothing more than the motive for the offending comment.

Even if the speech were on a matter of public concern, though, Scalia still would not consider it protected. The issue was not whether she ought to have been fired. The issue was whether it was permissible to discipline her in some way for her comment. If the speech was protected, then no reprimand would be allowed.

Rankin did have a legitimate interest in disciplining McPherson, Scalia argued, explicitly contradicting the majority's finding that "there is no evidence that [McPherson's comment] interfered with the efficient functioning of the office." As proof, Scalia pointed to a statement from testimony, that the deputy reporting McPherson's comment to Rankin "was very upset because of [it]."

He also took issue with the Court's leniency toward the statements of "nonpolicymaking" employees. (The category of "nonpolicymaking employees" was not new to this case, contrary to Scalia's assertion. It arose first in reference to patronage cases, in Elrod v. Burns 1976, which recommended that patronage dismissals be limited to nonpolicymaking positions. In Rankin, however, the category was first used outside the context of a patronage case.) "Nonpolicymaking employees," Scalia objected, "can hurt working relationships and undermine public confidence in the organization every bit as much as policymaking employees."