On Thursday, June 19, 2014, the U.S. Supreme Court in Lane v. Franks held that the First Amendment protects a public employee who provides truthful sworn testimony, compelled by subpoena, outside the scope of his or her ordinary job responsibilities. In so holding, the Court overturned precedent from the U.S. Court of Appeals for the Eleventh Circuit (covering Alabama, Georgia, and Florida), which had held that such testimony lacks First Amendment protection as speech pursuant to “official duties” when it concerns the employees’ job responsibilities.
The Court’s holding now allows Edward Lane, a former community college employee, to proceed with a First Amendment retaliation claim. In his lawsuit, he alleges the College terminated his employment because he had testified in criminal proceedings against a politician he had helped oust from what appeared to be a “no show” job at the College.
In 2006, Lane took a probationary position as a program director for at-risk youth at the College. Upon auditing the program’s finances, he found that the program listed a State representative on the payroll who did not report for work. When he raised concerns about this, the College’s president and its lawyer supposedly warned him that terminating the representative could have negative repercussions not just for the College but for Lane personally. Nevertheless, when the representative continued to refuse to report to work, Lane terminated her employment. She thereafter sued, demanding her job back. She also 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 concerning her. When the federal government brought criminal charges against the representative, Lane testified in two criminal trials on the charges. In his testimony, he described the events that led to the termination of the representative, which were matters relating to his own job duties.
After his testimony at the criminal trials, Lane lost his employment at the College by way of a layoff. 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 viewed his termination as retaliation for his First Amendment protected speech in testifying at the criminal trials, and sued Franks and the College.
As a general rule, to establish a claim of retaliation under the First Amendment, a public employee must show among other things that his or her speech was not pursuant to “official duties,” i.e., was not speech which the government paid the employee to render as part of his or her job. The U.S. Supreme Court confirmed this rule in its landmark 2006 decision Garcetti v. Ceballos. There, 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.”
The Eleventh Circuit U.S. Court of Appeals had extended this rule to apply to an employee who testifies about such activities pursuant to “official duties.” In Morris v. Crow, the Eleventh Circuit court held that, when a public employee testifies concerning speech originally made as part of the employee’s job duties, the testimony lacks First Amendment protection. Part of the Court’s reasoning was that the speech in the form of testimony is not voluntary on the part of the public employee, but instead part of the compulsory process of rendering testimony as required by law.
In Lane v. Franks, the U.S. Supreme Court overruled this precedent and held that speech by a public employee rendered as sworn testimony does not lose its First Amendment protection just because it relates to the employee’s discharge of “official duties” Instead, such speech can have First Amendment protection.
The Court’s majority opinion, written by Justice Sotomayor, held: “Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment.” The Supreme Court pointed out 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.” The Court concluded: “That independent obligation renders sworn testimony speech as a citizen and sets it apart from speech made purely in the capacity of an employee.”
In a footnote, the Court left open the question of whether the Garcetti “official duties” rule would nevertheless apply to a public employee who does in fact testify in court as part of his or her ordinary job responsibilities. The court described: “We accordingly need not address in this case whether truthful sworn testimony would constitute citizen speech under Garcetti when given as part of a public employee’s ordinary job duties, and express no opinion on the matter today.”
Three of the Court’s Justices signed a concurring opinion that further developed this point that the Court did not reach the issue of protection for public employees who testify as part of their ordinary job duties. The concurring opinion, written by Justice Thomas, cited “police officers, crime scene technicians, and laboratory analysts” as examples of employees for whom “testifying is a routine and critical part of their employment duties.” The concurring opinion also cited as potentially outside the scope of the Lane holding individuals designated to testify as representatives of their employer in litigation, and indicated that the Court had not yet evaluated constitutional protection for this type of testimony.
The Court’s opinion also emphasized that the testimony by Lane concerning the corruption of a public official clearly met a separate element of the test for whether a public employee can prevail on a First Amendment claim, in particular the requirement that the employee speak on a matter of “public concern.”
The Court addressed a second principal issue, whether, even though Lane’s speech was protected, individual administrators such as Franks nevertheless are protected by the doctrine of qualified immunity from having to pay damages. Qualified immunity protects government officials from individual liability if the constitutional right they violated was not “clearly established” at the time. The Supreme Court found that, because the state of the law in the Eleventh Circuit was not clear at the time the college President Franks made the decision to fire Lane, the President was entitled to qualified immunity for any claim for damages. The Court held, however, that Lane’s separate non-damages claim against another administrator could proceed, and remanded the issue for further proceedings.
The upshot of Lane v. Franks is that public employers cannot successfully argue that, just because a public employee testifies about matters they learned as part of their official job responsibilities, the testimony lacks First Amendment protection as “official duties” speech. That said, even for speech that has First Amendment protection, the employer can act on it if it can show that a balancing of government interests against employee speech interests warrants the government action. (The Court’s opinion acknowledges this in its discussion of balancing principles.)
Finally, the Court’s decision regarding protection for testimony, in fact, brings the law into conformity with the rule in the Ninth Circuit, which covers California and other western states, that sworn testimony by public employees concerning their job duties can be protected. In Clairmont v. Sound Mental Health in 2011 the Ninth Circuit found protection for trial testimony, and in Karl v. City of Mountlake Terrace in 2012 it found protection for deposition testimony.