Based on Pickering v. Board of Education (1968)
Five fold test as stated by Ninth Circuit in Kennedy v. Bremerton School District (2022) on page 16 of the Ninth Circuit's opinion.

  1. [When a public employee or public official speaks:]
  2. whether the plaintiff spoke on a matter of public concern; (no longer valid? (See notes below regarding Garcetti and Lane)
  3. whether the plaintiff spoke as a private citizen or public employee;
  4. whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action;
  5. whether the state had an adequate justification for treating the employee differently from other members of the general public; and
  6. whether the state would have taken the adverse employment action even absent the protected speech.
From Cornell Legal Information Institute on the Pickering Test: In Garcetti v. Ceballos, the Court held that there is no First Amendment protection--Pickering balancing is not to be applied--“when public employees make statements pursuant to their official duties,” even if those statements are about matters of public concern. The fact that the employee’s speech occurred inside his office, and the fact that the speech concerned the subject matter of his employment, were not sufficient to foreclose First Amendment protection. Rather, the “controlling factor” was “that his expressions were made pursuant to his duties.” However, in Lane v. Franks, the director of a state government program for underprivileged youth was terminated from his job following his testimony regarding the alleged fraudulent activities of a state legislator that occurred during the legislator’s employment in the government program. The Court held generally that testimony by a subpoenaed public employee made outside the scope of his ordinary job duties is to be treated as speech by a citizen, subject to the Pickering-Connick balancing test. The Court noted that “[s]worn testimony in judicial proceedings is a quintessential example of speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation to the court and society at large, to tell the truth.” [not to mention perjury liability] The Court in Lane ultimately found that the plaintiff’s speech deserved protection under the Pickering-Connick balancing test because the speech was both a matter of public concern (the speech was testimony about misuse of public funds) and the testimony did not raise concerns for the government employer. The Court, however, held that because no relevant precedent in the lower court or in the Supreme Court clearly established that the government employer could not fire an employee because of testimony the employee gave, the defendant was entitled to qualified immunity.
article from 2021 on Garcetti-Ceballos
Federalist Society 2021 article entitled An Academic Freedom Exception to Government Control of Employee Speech