First Amendment Protects Public Employees Who Give Truthful, Sworn Testimony Outside The Scope Of Their Ordinary Job Duties From Retaliation


In Lane v. Franks, et al, Edward Lane was discharged as a program director at a state college after testifying in a criminal, public corruption case against an Alabama State Representative. Lane had previously discharged the Representative, who was also an employee of the state college program which Lane oversaw, after discovering that the Representative was collecting her paycheck but not reporting for work.  The lower courts had held that Lane’s testimony was not entitled to First Amendment protection under Garcetti v. Ceballos.  In Garcetti, a deputy district attorney alleged that he was discharged in retaliation for preparing an internal memorandum recommending dismissal of a particular prosecution--which was one of his official duties--and the U.S. Supreme Court affirmed dismissal of his claim because “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.”  In Lane, the Supreme Court, however, unanimously held that truthful, sworn testimony in a judicial proceeding by a public employee outside the scope of his ordinary job duties is “quintessential” speech for First Amendment purposes, even when the testimony relates to his public employment or concerns information learned during public employment, and that testimony about public corruption is clearly a matter of public concern.  The Supreme Court clarified that the critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s job duties, not whether it merely concerns those job duties.  The Supreme Court expressly said that it had not decided whether truthful sworn testimony would constitute citizen speech when given as a part of a public employee’s ordinary job duties, such as where police officers testify in criminal proceedings.  The Supreme Court’s decision will apply most directly to state, county, municipal and local government employers.

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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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