One consequence of case-by-case balancing is its implication for the qualified immunity of public officials whose actions are alleged to have violated an employee's first amendment rights. There will rarely be a basis for
a priori judgment that the termination or discipline of a public employee violated “clearly established” constitutional rights.
Connick and
Rankin exemplify the difficulty of delineating any bright-line constitutional rule that might furnish a test for denying qualified immunity in such actions.
Connick held constitutionally unprotected a questionnaire distributed within a district attorney's office that inquired,
inter alia, whether the employees thought the office was politically influenced and whether it was properly performing its job. In
Rankin, however, the Court held that a derogatory personal remark about President Reagan, uttered in a private intra-office conversation,
was constitutionally protected.
Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). Our recent conclusion in a discussion of the qualified immunity of child protective service workers, upon adaption, holds true here as well: “... reasonable government officials, knowing only that they must not infringe on [employee free speech rights], would not necessarily know just what conduct was prohibited.”
Hodorowski v. Ray, 844 F.2d 1210, 1217 (5th Cir.1988) .