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The Supreme Court outlined the test for First Amendment protection of government employees' speech in Pickering v. Board of Educ., 391 U.S. 563 ('68). To receive protection, the speech must be on a matter of public concern, and the employee's interest in expressing herself on this matter must not be outweighed by any injury that the speech could cause to the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. Id. at 572-74; Waters v. Churchill, 114 S.Ct. 1878, 84 ('94).
'Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.' Connick v. Myers, 461 U.S. 138, 147-48 ('83). This is a question of law. Id. at 148 n.7. 'Speech focused solely on internal policy and personnel grievances does not implicate the First Amendment.' Hyland v. Wonder, 972 F.2d 1129, 37 (9th Cir.'92), cert. denied, 113 S.Ct. 2337 ('93). We review de novo whether Lambert's speech is a matter of 'public concern.' Id. at 1134. Connick, at 141 (not a matter of public concern).
When remarks 'reflect one employee's dissatisfaction with a transfer and an attempt to turn that displeasure into a cause celebre'); Havekost v. U.S. Dep't of Navy, 925 F.2d 316, 18 (9th Cir.'91) (holding complaint about dress code and staffing policies 'nothing more than a workplace grievance' and noting that a 'critical inquiry is whether employee spoke in order to bring wrongdoing to light or merely to further some purely private interest'); McKinley, 705 F.2d at 1114 ('Speech by public employees may be characterized as not of `public concern' when it is clear that such speech deals with individual personnel disputes and grievances and that the information would be of no relevance to the public's evaluation of the performance of governmental agencies').
Defendants contend that the forum in which the statement is made can be considered only in the second half of the Pickering test, i.e., whether the employee's interest in free expression is outweighed by the employer's interest in work place efficiency. However, this argument was rejected by the Connick majority. Connick, at 159 (Brennan, dissenting)
It is clearly established that authorities cannot transfer a prisoner from one correctional institution to another in order to punish the prisoner for exercising his First Amendment right to pursue civil rights litigation in the courts. See Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.'85).
Ninth Circuit law also clearly establishes the right verbally to challenge the police. In Duran v. City of Douglas, 904 F.2d 1372, 378 (9th Cir.'90), we stated that police may not exercise 'the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.' It held in Duran that a police officer did not have probable cause to stop an individual for the obscene gestures and words he directed from his car towards the police officer and that the officer was not entitled to qualified immunity. '[C]riticism of the police is not a crime.' Id. at 1377.