(dissenting) — The majority affirms summary judgment dismissal of Benjamin’s suit, asserting, as a matter of law, his speech finds no protection in the First Amendment. But since Benjamin has alleged violation of his clearly established First Amendment right to speak, *533this suit cannot be barred by qualified immunity. Nor can his suit be dismissed on summary judgment when he has properly set forth facts in the record to support it. I would therefore recognize and defend Benjamin’s right to proceed to trial against the Washington State Bar Association and its director and would reverse the trial court.
I.
No qualified immunity for violation of a clearly established right
Harwick’s threshold defense is qualified immunity.112 Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982) (“Until this threshold [qualified] immunity question is resolved, discovery should not be allowed.”) (emphasis added). In certain situations public officials enjoy qualified immunity from claims arising from the violation of the constitutional rights of others. Qualified immunity is an affirmative defense and the burden is on the defendant to assert the defense. Gomez v. Toledo, 446 U.S. 635, 639-41, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980). The test is an objective one: a claim of qualified immunity will fail where the public official’s conduct “violate^] clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818; Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987) (“[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action.”); Crawford-El v. Britton, 523 U.S. 574, 588, 118 S. Ct. 1584, 140 L. Ed. 2d 759 (1998) (“defendant’s subjective intent is simply irrelevant to that defense [of qualified immunity].”). It is not necessary for the specific action of *534the public official to have been previously declared unlawful, but merely for the unlawfulness of the action to have been objectively apparent under law preexisting the official’s action:
The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful . . . but it is to say that in the light of pre-existing law the unlawfulness must be apparent.
Anderson, 483 U.S. at 640. See also Harris v. Roderick, 126 F.3d 1189, 1203 (9th Cir. 1997) (“[The plaintiff] need not present a factually similar case in order to show that his constitutional rights were clearly established.”); CrawfordEl, 523 U.S. at 590 (“The objective standard, in contrast, raises questions concerning the state of the law at the time of the challenged conduct.”).
In addition to asserting a clearly established right, to survive a claim of qualified immunity a plaintiff must also allege the right asserted has been violated. Siegert v. Gilley, 500 U.S. 226, 232, 111 S. Ct. 1789, 1793, 114 L. Ed. 2d 277 (1991) (“A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is ‘clearly established’ at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all.”). A claim of qualified immunity requires examination of the facts alleged by the plaintiff, not the facts as they may ultimately be found. Crawford-El, 523 U.S. at 598 (“[to resolve the question of qualified immunity] the court must determine whether, assuming the truth of the plaintiff’s allegations, the official’s conduct violated clearly established law”) (emphasis added).
But the majority erroneously frames the qualified immunity question as “whether a violation of a constitutional right has occurred.” Majority at 527 (emphasis added) (citing Siegert, 500 U.S. at 232). In Siegert the defendant was *535entitled to qualified immunity because the plaintiff simply failed to make sufficient allegations to establish a constitutional violation. Siegert, 500 U.S. at 233 (“Siegert failed not only to allege the violation of a constitutional right that was clearly established at the time of Gilley’s actions, but also to establish the violation of any constitutional right at all.”). The majority’s approach puts the cart before the horse because it requires a plaintiff to affirmatively prove a violation of a constitutional right to defeat a claim of qualified immunity, thereby requiring the litigation to reach the merits of factual determinations, and thus frustrating the purpose of the doctrine which is to operate as an immunity to suit rather than a defense to be asserted at trial. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985) (“The entitlement [under the qualified immunity doctrine] is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.”).
Clearly, qualified immunity is appropriate only where assertions of fact by the plaintiff do not rise to the level of a clearly established constitutional violation. E.g., Siegert, 500 U.S. 226 (finding defendant entitled to qualified immunity since plaintiff failed to establish violation of clearly established constitutional right). There is no qualified immunity when: (1) the right asserted was clearly established at the time of the plaintiffs discharge, and (2) the plaintiff factually alleges a violation of that right. Therefore the question to be decided for the purpose of qualified immunity is whether at the time Harwick fired Benjamin it was clearly established his action was unconstitutional based on the facts asserted by Benjamin.
A. The First Amendment right of a public employee to speak on matters of public importance was clearly established before Benjamin’s discharge
The First Amendment right of public employees to speak and be free of workplace retaliation has been “clearly established” for 30 years since Pickering v. Board of Educ., *536391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). There the Supreme Court recognized no public employee relinquishes his or her First Amendment rights to speak on matters of public importance merely because their employer is the government. See also Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977), superseded on other grounds by statute as stated in Rivera v. United States, 924 F.2d 948 (9th Cir. 1991); Connick v. Myers, 461 U.S. 138, 146, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983); Rankin v. McPherson, 483 U.S. 378, 384-85, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987). Therefore the First Amendment right of public employees to speak without job retaliation was clearly established by the Supreme Court long before it was laid out in four parts by this court in Binkley v. City of Tacoma, 114 Wn.2d 373, 787 P.2d 1366 (1990), and long before Benjamin was fired for speaking out:
To determine if a public employer has violated a public employee’s right to free speech, we employ a 4-step inquiry, each step of which must be satisfied. First, the public employee must establish that his speech dealt with a matter of public concern. Connick v. Myers, 461 U.S. 138, 147, 75 L. Ed. 2d 708, 103 S. Ct. 1684, 1690 (1983); Pickering, [391 U.S.] at 568[, 88 S. Ct. at 1734]. Second, if the speech dealt with a matter of public concern, the public employee must prove that his interest in “commenting upon matters of public concern” is greater than the employer’s interest in “promoting the efficiency of the public services it performs.” Pickering, at 568[, 88 S. Ct. at 1734].[113] Third, the public employee must demonstrate that his speech was a substantial or motivating factor in the adverse employment decision of which he complains. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568, 576 (1977); Hayes v. Chicago, 710 F. Supp. 239, 242 (N.D. Ill. 1989). Finally, if the public employee is able to prove these three elements, the burden shifts to the employer to prove that it would have reached the same decision even in the absence of the employ*537ee’s protected conduct. Mt. Healthy, [429 U.S.] at 287[, 97 S. Ct. at 576].
Binkley, 114 Wn.2d at 382. The first two steps of this four-part analysis test whether an employee’s speech is protected by the First Amendment and are, therefore, questions of law for this court to resolve. Rankin, 483 U.S. at 386 n.9. Steps three and four, however, are questions of fact to be determined by the fact finder. Binkley, 114 Wn.2d at 382.
Because the contours of the right at issue—in particular the Pickering balancing test—are somewhat fact-specific, it has been argued it would be almost impossible for a public official to know in advance when a proposed act would violate an employee’s rights. See Brewster v. Board of Educ., 149 F.3d 971, 979-80 (9th Cir. 1998); Moran v. Washington, 147 F.3d 839, 847 (9th Cir. 1998). But even this reasoning does not automatically defeat such claims on qualified immunity grounds. Rather, qualified immunity directs the court to evaluate the facts as alleged in the plaintiffs complaint under the “clearly established” standard to determine whether the factual allegations, if proved, amount to a clearly established constitutional violation (step two of the qualified immunity analysis). Indeed the Pickering balancing test itself is “clearly established.” Rankin, 483 U.S. at 386 n.9.
Although balancing an employee’s right to speak against an employer’s interest in an efficient workplace requires an examination of specific facts, the criteria for weighing those facts in balance have been well defined by the courts. See, e.g., Connick, 461 U.S. at 152-53 (stating that the time, place, and manner of employee’s speech is relevant to the Pickering balance); Wright v. Illinois Dep’t of Children & Family Servs., 40 F.3d 1492, 1502 (7th Cir. 1994) (stating that whether the speech impeded the employee’s ability to perform his job responsibilities is relevant to the Pickering balancing test).
Therefore, under the qualified immunity defense as outlined in Harlow and Anderson, the general contours of *538a public employee’s First Amendment rights are clear, whereas the Pickering balance is simply one element of what must be proved to demonstrate the constitutional right of a plaintiff has been violated. Our constitutional rights would be almost meaningless if they could be so easily defeated by simply observing every violation is necessarily factually unique in some respects. A public official is not entitled to immunity simply because he asserts the Pickering test is designed to weigh specific facts. Rather the issue is whether the balance of the facts alleged by the plaintiff produces genuine doubt as to whether or not a constitutional violation has occurred. This is evidenced by the many cases where a public employee has claimed employment retaliation for the exercise of First Amendment rights and appellate courts have rejected claims of qualified immunity at the outset. See, e.g., Chateaubriand v. Gaspard, 97 F.3d 1218 (9th Cir. 1996); Hafley v. Lohman, 90 F.3d 264 (8th Cir. 1996); Kincade v. City of Blue Springs, 64 F.3d 389 (8th Cir. 1995); Lambert v. Richard, 59 F.3d 134 (9th Cir. 1995); Tindal v. Montgomery County Comm’n, 32 F.3d 1535 (11th Cir. 1994); Edwards v. Department of Transp., 66 Wn. App. 552, 832 P.2d 1332 (1992).
The contours of the right of public employees to speak freely under the First Amendment without employment retaliation were therefore clearly established as required by Harlow and Anderson before Harwick discharged Benjamin in 1993.
B. Benjamin alleges facts demonstrating a violation of his clearly established First Amendment rights
To properly allege a violation of his First Amendment rights as a public employee Benjamin must make allegations sufficient to satisfy each of the four prongs of the test outlined in Binkley, 114 Wn.2d at 382.
First, Benjamin must allege his speech dealt with a matter of public concern. Benjamin’s speech related to the method of funding the Washington State Bar Association’s Lawyer Assistance Program (LAP) which is designed to as*539sist attorneys who are impaired in their ability to function professionally. Benjamin specifically alleges LAP is a matter of public concern (Clerk’s Papers (CP) at 4) and the majority does not dispute this.114
Second, Benjamin must allege his speech is more important than his employer’s interest in workplace efficiency. Benjamin alleges it was in fact Benjamin’s role to take issues such as client fees to the LAP Steering Committee (CP at 387) and Harwick concedes in his deposition this was within the scope of Benjamin’s duties. CP at 435. If Benjamin’s free speech activity were part of his job description, the exercise of that duty to speak cannot, absent more, be outweighed by the employer’s interest in efficiency. To the contrary, it is an aspect of efficiency. To remain silent when one is hired to speak defeats job performance, it does not enhance it.
Third, Benjamin must allege his speech was a substantial or motivating factor in the decision to fire him. Benjamin specifically alleges “Harwick decided to terminate Benjamin because of views Benjamin expressed on issues of public concern.” CP at 5. This factor was stipulated by the parties and admitted by the majority. Majority at 515.
The fourth element of the test shifts the burden to the employer to show that it would have reached the same decision even in absence of the protected speech. This element cannot form a basis for qualified immunity because it burdens the employer to prove a factual matter. In any event, Benjamin’s complaint alleges on November 4, 1993, Benjamin told the LAP Steering Committee about his disagreement with Harwick over LAP funding (CP at 4) and that Harwick’s negative performance appraisal firing Benjamin was dated the same day. CP at 5. This connection between Benjamin’s speech and the decision to fire him is *540sufficient to overcome the fourth element of the test for the purposes of the qualified immunity defense.
Benjamin therefore properly Alleges a violation of a constitutional right that was clearly established before his discharge. The majority’s suggestion Benjamin fails to overcome qualified immunity is in reality not based on qualified immunity at all but rather upon the majority’s invasion of the jury’s province to weigh disputed facts and inferences.
II.
Summary judgment cannot weigh disputed facts
A determination that a defendant is not entitled to qualified immunity does not by itself mean the “clearly established” constitutional claim against him is factually supported. This is usually a matter for the trier of fact at trial. Summary judgment, however, requires us to view the evidence and inferences therefrom in the light most favorable to the nonmoving party (in this case Benjamin), and then test the plaintiff’s proof against the summary judgment standard set out in CR 56 (“The [summary] judgment sought shall he rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”).
Although the majority correctly states the standard to be applied on summary judgment (Majority at 515), it subverts that standard by concluding “there is sufficient evidence on the record in this case to conclude that Appellant Benjamin’s exercise of his right to speak would likely disrupt the workplace of the Washington Bar Association.” Majority at 528-29 (emphasis added). But weighing the “sufficiency” of the evidence is for the trier of fact, whereas the court’s role on summary judgment is merely to determine if there is any evidence, or inference therefrom, which, if believed, would allow the nonmoving party to prevail.
In effect the majority turns the summary judgment stan*541dard of review on its head. When viewing the evidence in the light most favorable to the nonmoving party (Benjamin), we look not for evidence that the claim of the moving party (Washington State Bar Association) has merit, hut rather whether the claim of the nonmoving party (Benjamin) has any evidence to support it. Contrary to the majority’s analysis of prong two of the test (the Pickering balancing test), the question is not whether there is evidence that Benjamin’s speech was disruptive (the argument advanced by Washington State Bar Association, the party moving for summary judgment) but rather whether there is evidence his speech was not disruptive (Benjamin’s argument).
The majority asserts Benjamin’s speech was not protected by the First Amendment because under prong two of the four-part test for identifying the free speech rights of public employees, the Bar Association’s interests in efficiency in the workplace outweigh Benjamin’s free speech interests. Of course any employer has an interest in workplace efficiency, but that does not mean an employee undermines that efficiency by speaking out on matters of public concern.
The majority implicitly concedes not only that the Washington State Bar Association is a governmental entity (and therefore the conduct complained of was under “color of law” as required by 42 U.S.C. § 1983) but also that Benjamin’s speech involved a matter of public concern, satisfying prong one of the four-part test. Indeed the majority seems to regard these propositions as so inherently self-evident that further discussion in its opinion is not merited. While I agree with the majority on these points, I will, however, apply the summary judgment standard to each prong of the four-part test summarized in Binkley.
First, viewing the evidence in the light most favorable to Benjamin, is there evidence to support Benjamin’s claim that his speech dealt with a matter of public concern? Benjamin expressed opposition to a proposed five-fold increase in the level of fees charged by LAE CE at 343. *542LAP offers help to attorneys who suffer from mental, alcohol, drug, or other health problems. CP at 340. The program is designed to prevent attorneys from becoming impaired in their work and to assist attorneys who are already impaired. CP at 340-41. The ultimate aim of LAP is therefore to prevent or reduce attorney disciplinary problems due to impairment, and as such the functioning of the program obviously raises the same issues of public concern that justify regulation of the bar in the first place. In re Discipline of Plumb, 126 Wn.2d 334, 340, 892 P.2d 739 (1995) (purpose of lawyer discipline is to protect public); CP at 364 (Sunset Review Report of the Lawyer’s Assistance Program (WSBA’s Budget & Audit Comm., 1993)) (“By acting to prevent deterioration of an attorney’s proficiency, LAP provided an effective barrier to degradation of services to the point where malpractice, discipline or both, became inevitable. It is that public benefit which provided the theoretical underpinnings for the program, and which justify its continuation.”). Indeed defendant Harwick admits that the purpose of the LAP is to protect the public. CP at 429. There is ample evidence in the record that a five-fold increase in fees would have jeopardized LAR CP at 212-13, 217-19, 343. As the majority implicitly concedes, there is substantial evidence to support a finding that Benjamin’s opposition to the fee increase is speech that addresses an issue of public concern.
The concurrence asserts as a matter of law Benjamin’s speech did not pertain to a matter of public concern, despite conceding that attorney discipline is of concern to the public. Concurrence at 530. The concurrence relegates the LAP to a mere “adjunct” to attorney discipline, Concurrence at 530-31, ignoring the description of LAP as “provid[ing] an effective barrier to degradation of services to the point where malpractice, discipline or both, became inevitable.” CP at 364 (WSBA’s Sunset Review Report of LAI^ supra) (emphasis added). It logically follows that if discipline of attorneys who commit malpractice is important to the public interest, then a program that effectively prevents otherwise inevitable attorney malpractice must be at least *543as important to the public interest as the regulatory scheme of which it forms an essential part. Indeed the trial court found Benjamin’s speech about LAP client fees to be of public concern “because any program dealing with impaired lawyers is a matter of public concern.” CP at 608 (Order Granting Defs.’ Mot. for Partial Summ. J. (Nov. 11, 1996).
The concurrence also asserts “Benjamin’s speech demonstrates nothing more than an internal disagreement over how the LAP should be funded.” Concurrence at 531. But this assumes LAP will have funding and the disagreement was merely about the source of that funding not about the very lifeblood of this essential program. Not so. There is clear evidence in the record the five-fold increase in fees objected to by Benjamin would cause discontinuance of the LAP. CP at 212-13, 217-19, 343. Applying the summary judgment standard we must view the evidence in the light most favorable to the nonmoving party (Benjamin), recognizing there is evidence Benjamin’s speech advocated continuance of the LAP program against a clear threat to its continued existence. This is a matter of public concern and neither the majority nor the concurrence claims otherwise.
When compared to the standard set by other decisions, Benjamin’s speech was clearly of public concern. Rankin v. McPherson, 483 U.S. 378, 380, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987) (holding isolated personal comment by a data-entry employee referring to assassination attempt on the United States President, “If they go for him again, I hope they get him” was a statement addressing a matter of public concern); Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983) (holding parts of a questionnaire dealing with morale and discipline in the workplace were not matters of public concern); Binkley v. City of Tacoma, 114 Wn.2d 373, 787 P.2d 1366 (1990) (holding an employee’s written criticism of supervisor was of limited public concern). Benjamin’s speech was not concerned with internal office matters like much of the questionnaire in Connick, nor was Benjamin merely dissatisfied with his *544supervisor as in Binkley. Neither was Benjamin’s speech careless personal speculation on an assassination attempt as in Rankin-, rather it concerned the future of an important publicly funded program. “The key here is that the plaintiff was not simply speaking to matters of personal interest, such as disputes over internal office affairs as in Connick.” Dicomes v. State, 113 Wn.2d 612, 625, 728 P.2d 1002 (1989) (holding speech relating to budget of medical disciplinary board was of public concern).
Second, viewing the evidence in the light most favorable to Benjamin, is there evidence to show Benjamin’s speech interest was greater than, or at least did not undermine, WSBA’s interest in an efficient workplace? The majority focuses only on this second prong of the test, dismissing Benjamin’s complaint because it concludes as a matter of law the Bar Association’s interest in workplace efficiency “outweighs” Benjamin’s interest in free speech, but without demonstrating how Benjamin’s speech even arguably undermined that “efficiency.” In so concluding, the majority gives “deference” to the Bar Association’s assertions that Benjamin’s speech had the potential to be disruptive to working relationships in light of the Bar Association’s “fiscal crisis.” Majority at 519, 520, 521. This deference is no more than a statement of blatant prejudice in favor of the government party, it undermines the purpose of the Civil Rights Act (42 U.S.C. § 1983),115 which is to provide relief against government actors, and is abhorrent. Although it is not necessary for actual disruption of the workplace to occur before a state agency prevails in this balance, the deference the summary judgment standard affords is to the nonmoving party (Benjamin), not the Bar Association.
In Waters v. Churchill, 511 U.S. 661, 674, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994), after noting actual disruption was not necessary for the state to prevail in the Pickering *545balancing test, the Supreme Court reaffirmed the importance of free speech rights of public employees:
Government employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions. And a government employee, like any citizen, may have a strong, legitimate interest in speaking out on public matters. In many such situations the government may have to make a substantial showing that the speech is, in fact, likely to be disruptive before it may be punished.
Waters, 511 U.S. at 674. The inquiry is therefore focused on whether, without dispute of fact, a specified and real threat of disruption justified the termination, not just a claim that such might be the case. Otherwise an employee’s interest in free speech will always be defeated by the state agency which merely raises the specter of disruption, albeit without factual predicate.
Here the Bar Association failed to make even a “substantial showing,” let alone a factually undisputed one, that Benjamin’s speech was likely to disrupt. Although the record references the Bar Association’s “financial crisis,” such a “crisis” is not even arguably due to, or caused by, employee disruption but rather the age old problem of spending more than one earns. Remarks made by Benjamin (e.g., CP at 351, “assuming WSBA does not remain in financial trouble”) do not even tend to demonstrate any disruptive behavior on his part but, to the contrary, demonstrate an acute awareness of financial reality and countervailing demands on scarce resources. It was appropriate, not disruptive, for Benjamin to recommend an allocation of scarce resources: mere disagreement cannot be the equivalent of disruption, especially if the employee’s job description also contemplates an honest rendering of his professional opinion.
The majority asserts Benjamin’s speech was likely to have a “detrimental effect on close working relationships for which personal loyalty and confidence are necessary” and this tips the Pickering balance in favor of the Bar Als*546sociation. Majority at 521 (citing Connick, 461 U.S. at 103). But such is not the only inference from this record, if it is a permissible inference at all. Connick involved a public employee who opposed a proposed transfer to a different department and circulated a questionnaire to other employees, primarily asking about their satisfaction with the way the office was run. After recognizing a need for deference to an employer’s judgment for the preservation of close working relationships, the Supreme Court held: “We caution that a stronger showing [by the employer] may be necessary if the employee’s speech more substantially involved matters of public concern.” Connick, 461 U.S. at 152. In contrast, Benjamin’s speech clearly involved matters of more public concern than those raised in Connick (which were essentially concerned with internal office procedures). The Bar Association is therefore required to prove beyond factual dispute that Benjamin’s speech disrupted close working relationships, as opposed to just putting a differing view on the table which his supervisor could evaluate, accept or reject. Merely claiming a relationship will be undermined does not mean that it is. Watters v. City of Phila., 55 F.3d 886, 897-98 (3d Cir. 1995).
Indeed, construing the record most favorably to Benjamin, there is no evidence to link his speech to any one of the disruptive factors weighing in favor of the state agency for the purposes of the Pickering balancing test. See White v. State, 131 Wn.2d 1, 15, 929 P.2d 396 (1997) (“Relevant factors which may be considered in the balancing analysis include (1) the time, place and manner of the employee’s speech; (2) whether the statement would create problems in maintaining discipline by immediate supervisors or harmony among co-workers; (3) whether the employment relationship is one in which personal loyalty and confidence are necessary; and (4) whether the speech impeded the employee’s ability to perform daily responsibilities.”) (citations omitted).
Clearly for the purpose of summary judgment the Pickering balancing test must be resolved in favor of Benjamin *547since review of the evidence in the light most favorable to Benjamin demonstrates his speech was, in fact, not disruptive. If the Bar Association views disruption as synonymous with disagreement, this can be so only if the Bar Association will not tolerate any difference of opinion. But that is Harwick’s problem, not Benjamin’s, as government employees have a constitutional right to speak their minds on matters of public concern in a respectful, nondisruptive manner without fear of government violation.
Third, viewing the evidence in the light most favorable to Benjamin, is there evidence to support a finding that Benjamin’s speech was a substantial or motivating factor in the decision to fire him? As discussed in the qualified immunity analysis, Dr. Benjamin’s discharge was made known to him within a day of his report to the LAP Steering Committee, thus raising at least an inference that the two events were related. Furthermore this factor was stipulated to by the parties and admitted by the majority. Majority at 515. Benjamin has no difficulty overcoming this prong of the test on summary judgment.
For the fourth element of the test as set out in Binkley, the burden shifts to the employer to show that it would have reached the same decision despite the protected conduct. There is evidence in the record with which Benjamin could challenge such a showing by WSBA. The budget and audit committee of the WSBA prepared a report favorable to the LAP (CP at 363-65) and in his 1992 performance appraisal Benjamin was rated “outstanding” in almost every category. CP at 350. It was only when Benjamin voiced his objections about the proposed increase in LAP fees that he was given an unsatisfactory performance review. CP at 358.
Viewing the evidence in the light most favorable to Benjamin, it is clear that he has a valid claim against the WSBA and defendant Harwick for violation of his First Amendment rights.
The majority dismisses Benjamin’s claims as not amounting to a First Amendment violation and therefore concludes *548Benjamin has no cause of action against the WSBA for violation of the state constitution116 absent a demonstration the state constitution is more protective in this regard than its federal counterpart. Ipso facto, since I find Benjamin has stated a valid claim under the First Amendment I would consistently conclude he has a valid claim under the state constitution as well.
Since article I, section 5117 of the state constitution provides greater protection than the First Amendment, O’Day v. King County, 109 Wn.2d 796, 802, 749 P.2d 142 (1988), an action which violates the First Amendment must also violate the state constitution.118 Although the state constitution does not explicitly include a mechanism for redressing violations of state constitutional rights, DeYoung v. Providence Med. Ctr., 136 Wn.2d 136, 142, 960 P.2d 919 (1998), where the constitution grants a right it is incumbent upon the judiciary to provide a remedy. Ever since Marbury v. Madison, the rule has been as Chief Justice John Marshall stated it: “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L. Ed. 60 (1803). Such is particularly true with respect to state constitutional rights for unless they can be enforced these essential and fundamental rights are rendered merely theoretical.119 I see no evidence our Founding Fathers desired to create a right without a remedy, especially in *549light of article I, section 29 (“[t]he provisions of this constitution are mandatory, unless by express words they are declared to be otherwise”). Mandatory means mandatory.
Conclusion
Viewing the evidence in the light most favorable to Benjamin, I find ample evidence to satisfy all the elements of the constitutional test as set out in Binkley and would protect Benjamin’s exercise of his constitutional right to speak against violation by the Bar Association and its director. Therefore the summary judgment of dismissal must be reversed and this case should be remanded for trial by the trier of fact, not this appellate court, to determine whether *550the facts as may he found justify the relief for which Benjamin has prayed. I have no course but to dissent.
The majority fails to recognize the nature of qualified immunity as a threshold defense which must be decided at the outset, analyzing the substance of Benjamin’s claim before concluding “[qjualified immunity is not invoked because there is no constitutional violation.” Majority at 528. In structuring its analysis in this manner, the majority employs inverted logic. Qualified immunity is a threshold defense (an immunity from suit) which clearly must be analyzed first.
113Step two shall be referred to as the Pickering balancing test.
Although the concurrence substantively addresses whether Benjamin’s speech was a matter of public concern, it does not dispute that Benjamin alleges his speech is a matter of public concern. Concurrence at 530 (summarizing Benjamin’s argument). The concurrence therefore implicitly agrees Benjamin’s claim survives a qualified immunity analysis.
The purpose of § 1983 is to “ensure that an individual had a cause of action for violations of the Constitution.” Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979).
Although Benjamin’s cause of action against Harwick arises under 42 U.S.C. § 1983, Benjamin’s claim against the WSBA for violation of his free speech rights is for violation of article I, section 5 of the state constitution only. CP at 624.
Article I, section 5 states “[ejvery person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.”
In any event, Benjamin does not ask us to interpret the free speech provisions of the state constitution more broadly than the federal constitution. Therefore a Gunwall analysis is unnecessary, State v. Gunwall, 106 Wn.2d 54, 58, 720 P.2d 808, 76 A.L.R.4th 517 (1986).
Many states have recognized that citizens have a remedy for violation of state constitutional rights. E.g., Binette v. Sabo, 244 Conn. 23, 33, 710 A.2d 688 (1998) (holding state constitutional damages remedy exists); Brown v. New York, 89 N.Y.2d 172, 674 N.E.2d 1129 (1996) (holding cause of action to recover dam*549ages exists as remedy for violation of state constitutional rights); Bott v. DeLand, 922 P.2d 732, 737-39 (Utah 1996) (holding state constitutional “unnecessary rig- or” clause regarding cruel and unusual punishment created damages remedy); Gay Law Students Ass’n v. Pacific Tel. & Tel. Co., 24 Cal. 3d 458, 595 P.2d 592, 602 n.10, 156 Cal. Rptr. 14 (1979) (“The absence of such an administrative remedy, however, provides no justification for the judiciary to fail to enforce individual rights under the state Constitution.”); Walinski v. Morrison & Morrison, 60 Ill. App. 3d 616, 377 N.E.2d 242, 18 Ill. Dec. 89 (1978) (holding civil action for damages may be maintained for violation of state constitutional rights); Moresi v. State, 567 So. 2d 1081, 1093 (La. 1990) (In accepting the Bivens damage remedy, the court stated that “[Recovery of damages is the only realistic remedy for a person deprived of his right to be free from unreasonable searches and seizures.” Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971)); Phillips v. Youth Dev. Program, Inc., 390 Mass. 652, 459 N.E.2d 453, 457 (1983) (“a person whose constitutional rights have been interfered with may be entitled to judicial relief even in the absence of a statute providing a procedural vehicle for obtaining relief’); Strauss v. State, 131 N.J. Super. 571, 330 A.2d 646, 649 (1974) (“our [state] courts do recognize tort actions based upon violations of an individual’s constitutional rights”); Corum v. University of N.C., 330 N.C. 761, 413 S.E.2d 276, 290 (1992) (“It is the state judiciary that has the responsibility to protect state constitutional rights of the citizens; this obligation to protect the fundamental rights of individuals is as old as the State. . . . Having no other remedy, our common law guarantees plaintiff a direct action under the State Constitution for alleged violations of his constitutional freedom of speech.”); Widgeon v. Eastern Shore Hosp. Ctr., 300 Md. 520, 479 A.2d 921 (1984) (holding common law action for damages available to enforce state constitutional rights); Woodruff v. Board of Trustees, 173 W Va. 604, 319 S.E.2d 372 (1984) (mandamus with back pay available to enforce state constitutional rights).