Whether scope of employment is a threshold question for public employee free speech under the First Amendment

QUESTIONS PRESENTED 1. For purposes of First Amendment freedom of speech for public employees, whether scope of employment is a threshold question to be resolved before consideration of what speech constitutes an ordinary job duty, and if so, whether scope of employment is to be determined in accordance with precedent consisting of this Court’s decisions in Garcetti v. Ceballos,’ and Lane v. Franks,” plus Restatement (Third) of Agency, Scope of Employment principles and the federal appellate decisions applying these principles in this context, Anderson v. Valdez* and CBS Corp. v. F-C.C.,* or whether scope of employment should be decided in accordance with a new and different analytical framework propounded by the Eleventh Circuit. 2. Related thereto is the question whether the lower courts have defied this Court’s warning in Garcetti against undermining the constitutional right to freedom of speech by crediting an overly-broad job description of leadership as bringing the employee speech here at issue within the employer’s control. ! Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951 (2006). 2 Lane v. Franks, 573 U.S. __, 184 S. Ct. 2369 (2014). 3 No. 15-40836 at 2 (5th Cir. 2016). 4 535 F.3d 167, 189 (3d Cir. 2008).