Did You Know…Compelled Public Employee Testimony May Be Protected By the First Amendment


The Supreme Court’s recent unanimous decision in Lane v. Franks held that the First Amendment protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities.  Although the Supreme Court did not hold that every public employee who testifies in court is entitled to First Amendment protection, it struck down the argument that a worker who testifies about things learned during the course of their public employment automatically falls outside the scope of constitutional free speech protections.  The Court found that the public employee’s speech was not only made as a citizen, but it also involved a matter of public concern because it dealt with public corruption and misuse of state funds, according to the high court.

Edward Lane, a former public employee, claimed he was fired for testifying, under subpoena, in corruption charges against Alabama State Representative Suzanne Schmitz.

As director of a youth program operated by the Central Alabama Community College (the “College”), Lane had audited the program’s expenses and discovered that Representative Schmitz appeared on the payroll, but had not been reporting for work.  Despite warnings from the College that terminating the State Representative could result in negative repercussions for Lane personally, Lane terminated Schmitz’s employment.  He later testified before a federal grand jury about his reasons for firing Schmitz.  Following his testimony, the College terminated Lane.  Lane sued the College’s former President, Steve Franks, claiming retaliation for protected speech.

As a general rule, to establish protected speech under the First Amendment, a public employee must show, among other things, that the speech was not pursuant to his or her “official duties” or, in other words, the speech was not part of the job for which the government paid the employee.  Garcetti v. Ceballos, 547 U.S. 410 (2006).  The Eleventh Circuit deemed Lane’s testimony part of his official duties as a public employee because it concerned actions taken within the scope of his job, and therefore the speech was not protected by the First Amendment.

The Supreme Court reversed this finding, holding that truthful speech by a public employee, rendered as sworn testimony, does not lose its First Amendment protection merely because it pertains to actions taken by the employee as part of his or her official duties.  To hold otherwise, the Court noted, would “place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.”

The Court, however, upheld the Eleventh Circuit’s ruling that Franks, in his individual capacity, was entitled to qualified immunity because Franks could have reasonably believed that a public employer could fire an employee for speech provided in sworn testimony outside the employee’s usual job duties.

Lane v. Franks provides important guidance on free speech rights of public employees.  The Supreme Court, however, did not address how its decision might affect police officers, crime scene technicians, or laboratory analysts whose jobs often require them to testify about their official activities.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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