Whether statements made by a public employee during an internal investigation by a governmental agency regarding matters of public concern are within the employee's official duties and therefore outside the protection of the First Amendment as a matter of law, without regard to the employee's fact-based allegations that the speech itself was not ordinarily within the scope of his duties

QUESTION(S) PRESENTED Without hearing any evidence and contrary to the fact-based allegations of petitioner’s complaint that his speech was not made within the ordinary scope of his duties as a public employee, the Fifth Circuit Court of Appeals reversed the district court and dismissed petitioner’s First Amendment retaliation claims under 42 U.S.C. § 1983 for failure to state a claim on the ground that, as a matter of law, his speech was made pursuant to his official duties as a public employee and was therefore not constitutionally protected. Are statements made by a public employee during an internal investigation by a governmental agency regarding matters of public concern within the employee’s official duties and therefore outside of the protection of the First Amendment as a matter of law, without regard to his fact-based allegations that the speech itself was not ordinarily within the scope of his duties?