SCOTUS Affirms Right to Blow Your Whistle in Public Sector


If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. — Louis Brandeis, Associate Justice, United States Supreme Court

There has long been tension in the public sector regarding an employee’s duties as an agent of the state and his or her right as an individual to freedom of speech. In a decision handed down in June of 2014, the United States Supreme Court again revisited the issue, examining whether a public employee could be discharged for providing accurate sworn testimony against his or her employer in court.

In Lane v. Franks, the Court considered the case of a community college administrator, Edward Lane, called to testify in a criminal matter against a state representative. Lane had previously discovered that the representative had been receiving payments from the college’s payroll without reporting for work. Subsequent to his testimony, Lane was fired by a higher administrator.

For 50 years, the Court has weighed the following two competing interests when determining whether disclosures by public employees are protected under the First Amendment of the Constitution:

  • “[T]he interests of the employee, as a citizen, in commenting upon matters of public concern”
  • “[T]he interests of the State, as an employer, in promoting the efficiency of the public services it performs”

Consequently, public employees have been protected from retaliation when speaking as citizens but have typically received no such constitutional protection when speaking within the scope of their employment.

In Lane, the Supreme Court broadly ruled that Lane’s testimony was protected speech, noting that “Sworn 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.”

In addition to the statutory protections that may apply, this latest ruling also gives public employees a constitutional safety net when providing testimony in judicial proceedings. An experienced attorney can advise you how these laws interact and protect your rights as a whistleblower.

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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