On January 17, 2014, the U.S. Supreme Court decided to hear the free speech retaliation case of Edward Lane. Lane, a former employee of the Central Alabama Community College District, alleged in federal court that he lost his job because he had testified in a criminal matter against a former co-worker. In deciding the case, Lane v. Franks, the Supreme Court must determine the extent to which a public employee’s truthful testimony pursuant to a subpoena constitutes protected speech under the First Amendment, such that it can serve as the basis for a retaliation action against the employer. The Eleventh Circuit U.S. Court of Appeals, covering Alabama, ruled that the testimony was not protected.
Lane v. Franks has some unusual facts. In 2006, Lane took a probationary position as director of a program for at-risk youth at the College. Upon auditing the program’s finances, he found that a State representative was listed on the program’s payroll who was not reporting to work. When he raised concerns about this, he was allegedly warned by the College’s then-president and its lawyer that terminating the representative’s employment could have negative repercussions for Lane personally and for the College. The representative continued to refuse to report to work, and Lane terminated her employment. The representative thereafter filed a lawsuit demanding her job back. She allegedly commented to another program employee that she would “get back” at Lane for terminating her and that, if he requested money from the state legislature, she would respond “you’re fired.”
The FBI subsequently investigated the representative. Lane testified before a federal grand jury, and he then testified pursuant to subpoena in two federal criminal trials on charges against the representative, one in August 2008 and another in February 2009. In his testimony, he described his interactions with the representative and his efforts to get her to come to work.
In late 2008, Lane and Steve Franks, the College President, began discussing possible employee layoffs in the at-risk youth program which would be necessary due to budget cuts. Franks sent termination letters to 29 program employees who had fewer than three years of service, including Lane. Franks then rescinded nearly all the terminations on the basis that many employees were not in fact probationary. The terminations of Lane and one other employee, however, were not rescinded. Lane thereafter sued Franks and the College, alleging that his termination was in retaliation for his testimony against the representative, and that his termination violated his First Amendment rights.
As a general rule, for a public employee to establish a claim of retaliation under the First Amendment, the employee must show among other things that he or she “spoke as a citizen on a matter of public concern.” The U.S. Supreme Court confirmed this rule in its landmark 2006 decision Garcetti v. Ceballos. There, the Court held that a public employee’s speech rendered pursuant to her or his “official duties” lacks First Amendment protection for purposes of a retaliation case against the employer. The Supreme Court reasoned: “Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”
Precedent of the Eleventh Court of Appeals extended this principle to the context of an employee’s testimony in response to a subpoena. In a case named Morris v. Crow, the Eleventh Circuit held that, when a public employee testifies about speech activities made pursuant to official duties, the testimony lacks First Amendment protection. In testifying, the employee is essentially engaging in speech pursuant to compulsory process.
The trial court granted summary judgment in favor of Franks, thereby upholding the College’s position, and the Court of Appeals affirmed. The Court applied the rule articulated by Morris v. Crow regarding lack of protection for testimony pursuant to subpoena. It observed first that no one disputed that Lane was acting pursuant to his official duties as a director of the at-risk program in investigating the representative’s work activities, speaking with officials at the College about the situation, and ultimately terminating the representative’s employment. The Court reasoned: “That Lane testified about his official activities pursuant to a subpoena and in the litigation context, in and of itself, does not bring Lane’s speech within the protection of the First Amendment.” It described: “Although not dispositive, we consider it pertinent that the subject matter of Lane’s testimony touched only on acts he performed as part of his official duties. . . . [N]othing evidences that Lane testified at Schmitz’s trial ‘primarily in [his] role as a citizen’ or that his testimony was an attempt to comment publicly on [the at-risk program’s] internal operations.”
The appellate court’s opinion conceded that other U.S. Courts of Appeal had resolved the same issue differently, finding public employee speech pursuant to a subpoena to be protected speech. Indeed, the Court of Appeals covering California has on two occasions found that public employee speech pursuant to subpoena, on matters of public concern, has First Amendment protection. The first time was Clairmont v. Sound Mental Health in 2011 for trial testimony, and the second Karl v. City of Mountlake Terrace in 2012 for deposition testimony.
In deciding to hear the Lane case, the U.S. Supreme Court has apparently decided to resolve this split among the circuits on the issue of First Amendment protection for testimony. Lane’s petition for review stated the issue in a way decidedly slanted toward his position: “Is the government categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities?”
The second issue to be decided by the Court is: “Does qualified immunity preclude a claim for damages in such an action?” The second issue poses the question of whether, if it turns out Lane’s speech pursuant to subpoena was in fact protected, individual administrators such as Franks have immunity from paying damages, because the issue of protection for such speech was unclear at the time. (Qualified immunity protects government officials from individual liability if the constitutional right they violated was not “clearly established” at the time.)
A big question is whether the U.S. Supreme Court will use its decision in Lane v. Franks only to answer the specific question of whether and when speech pursuant to a subpoena is protected (and also address qualified immunity). The Supreme Court may also take the opportunity to opine on the theoretical underpinnings of Garcetti v. Ceballos, and the “official duties” doctrine it recognized in that case. This broader approach could have a more comprehensive effect on public employee free speech cases and defense options for employers.
We will advise on further developments in Lane v. Franks as they occur.