In that conversation she made statements critical of cross-training practices recently implemented by the hospital's nursing supervisor, Cindy Waters, and referred to personal issues between the two.

David Souter added a short concurring opinion qualifying the plurality, which he said was in fact a majority,[1] with his insistence that in such cases the government must demonstrate that its understanding of what the employee said was not only a reasonable belief but a truthful one.

Churchill appealed to Hopper, her only recourse under the hospital's employee policy, but after a meeting with her and the personnel director he told her that the negative evaluation the month before counted as a second written warning and thus her termination had followed the proper process.

Coffey's opinion considered three issues: whether the district court had properly found Churchill's criticisms of Waters, Davis and cross-training did not touch on a matter of public concern, whether the appellants' failure to determine that before firing her had been a due process violation and whether they were entitled to qualified immunity from the suit since they argued there was no settled law on the subject.

[18] The most important precedent for Churchill's case was 1983's Connick v. Myers, where the Court had upheld the dismissal of an assistant district attorney who had circulated questionnaires among her coworkers about office policy and named superiors in the wake of a transfer she had resisted.

In her deposition, Churchill had discussed at length her criticisms of how cross-training had been implemented, and her concerns that the policy requiring a shower and change of clothes for nurses returning to the obstetric ward from another department was a possible violation of state regulations.

He chastised the hospital for its apparent violations, quoting from and discussing at length the standards of the Joint Commission on Accreditation of Healthcare Organizations on cross-training to demonstrate that this was a matter of public concern.

The determination of such an issue is best resolved through giving the judge or jury the opportunity to observe the verbal and non-verbal behavior of the witnesses focusing on the subject's reactions and responses to the interrogatories, their facial expressions, attitudes, tone of voice, eye contact, posture and body movements, rather than looking at the cold pages of depositions, which is all the court had before it on the summary judgment motion.

[12]Coffey turned next to the context, addressing Mihm's holding that under the Pickering balancing test, the hospital was permitted to fire Churchill because her speech was sufficiently disruptive to it even if it had been on a matter of public concern.

Justice Sandra Day O'Connor asked about the Pickering test: "Do you think that even protected speech could also serve to demonstrate sufficient disruption to the employer's operation that a firing could be justified?"

In a separate concurrence, Antonin Scalia wrote for himself, Clarence Thomas and Anthony Kennedy that adverse personnel actions for speech by public employees violate the First Amendment only when their purpose is clearly retaliatory, as he believed it had been in Pickering.

No one, she suggested, would dispute that a government agency could bar its employees from wearing, on the job, clothing decorated with profanity, despite the Court's Cohen v. California holding that such behavior could not sustain a prosecution for disorderly conduct.

[36]The Seventh Circuit's requirement "would force the government employer to come to its factual conclusions through procedures that substantially mirror the evidentiary rules used in court", O'Connor wrote.

With that in hand, a reasonable manager could have concluded that no further time needed to be taken.And what they believed Churchill to have said, under Connick, was disruptive enough to justify adverse action regardless of whether it addressed a public concern, which the plurality declined to decide.

That left it open for Churchill to argue on remand that the putatively disruptive speech issue was merely a pretext for an unjustified, retaliatory firing over her criticisms of the cross-training implementation.

[1] "This recognition", Scalia began, "of a broad new First Amendment procedural right is in my view unprecedented, superfluous to the decision in the present case, unnecessary for protection of public-employee speech on matters of public concern, and unpredictable in its application and consequences."

He could not reconcile this due-process requirement with other cases[note 3] where the Court had ruled that at-will public employees, lacking a property interest in their jobs, were not entitled to this level of process in adverse personnel actions.

In the present case, for example, if the requisite "First Amendment investigation" disclosed that Nurse Churchill had not been demeaning her superiors, but had been complaining about the perennial end-of-season slump of the Chicago Cubs, her dismissal, erroneous as it was, would have been perfectly OK ...

[52] Doubts concerning the ability of juries to find the truth, an ability for which we usually have high regard, should be resolved in favor of, not against, the protection of First Amendment rights ... [T]he plurality underestimates the importance of freedom of speech for the more than 18 million civilian employees of this country's federal, state, and local governments, and subordinates that freedom to an abstract interest in bureaucratic efficiency ... [which] does not demand an additional layer of deference to employers' "reasonable" factual errors.

A First Amendment claimant need not allege bad faith; the controlling question is not the regularity of the agency's investigative procedures, or the purity of its motives, but whether the employee's freedom of speech has been "abridged" ...

[57] Stevens, writing for the majority, distinguished the case from Waters and its predecessors by noting that it involved a broadly applied instance of prior restraint instead of a disciplinary action against a single employee for actual speech.

[60] Chief Justice William Rehnquist, writing for the dissenters, argued that the majority overemphasized the Waters test at the expense of the balancing of individual and government interests required by Pickering.

There, a New Jersey police detective sued his employer after he was demoted to patrol work due to a mistaken belief that he was supporting an opposing candidate in the city's mayoral election.

[70] Theodore McMillian relied on Waters to give weight to the chancellor's fears of disruption in light of the harassment campaign, noting that "It cannot seriously be disputed that, during that spring 1992 semester, the atmosphere on campus was more tense than normal.

[74] Ianni, who they felt had qualified immunity in any event due to the lack of settled law where academic freedom was concerned, had had to make a choice between two subordinates' conflicting interests.

Its lower constitutional standard for the government as employer led her to conclude that the Pickering balancing test should be applied to the intimate-association claim rather than strict scrutiny, as the district court had done.

He cited Waters as requiring "substantial weight" be given to the concerns of Bowers and his senior aides that Shahar's wedding ceremony would reflect adversely on his office and its ability to fulfill its duties.

"[84] A few months after Waters was handed down, back in the Seventh Circuit, Judge Joel Martin Flaum made it part of a two-fold test with Connick in Wright v. Illinois Department of Children & Family Services, a complicated case in which a child-welfare worker accused her employer of retaliating against her after she complained it was covering up evidence of satanic ritual abuse she had found.

[91] A Michigan school custodian fired after a long history of abusive communications with administrators and his union, which sometimes included threats of violence, was found to have engaged in unprotected speech.

"[95] He also thought it could be used for prior restraint since, in his analysis, a public employer could "fire an employee before he or she has spoken in cases where the government knows the general contours of the speech, and predicts that it might cause a disruption.