Declaring that “public employees do not renounce their citizenship when they accept employment,” the Supreme Court of the United States held today that the First Amendment protects a public employee’s truthful sworn testimony, compelled by subpoena. According to Justice Sotomayor, who delivered the opinion for a unanimous Court in Lane v. Franks, the issue turned on whether the employee’s speech was made pursuant to his ordinary job duties or whether the “employee spoke as a citizen on a matter of public concern.” The Court found that the testimony of the employee in this case was made as a citizen on a matter of public concern and that “public employers may not condition employment on the relinquishment of constitutional rights.” Lane v. Franks, No. 13-483, Supreme Court of the United States (June 19, 2014).
The case stemmed from the firing of a Central Alabama Community College employee, Edward Lane. During an audit of expenses, Lane discovered that an Alabama State Representative who was on the payroll had not been reporting for work. As a result, Lane fired her, prompting attention from the Federal Bureau of Investigation, which initiated an investigation into the representative’s employment. As a result, Lane testified before a federal grand jury, a subsequent trial (under subpoena), and at a retrial about his reasons for the firing.
Shortly thereafter, the program for which Lane worked, which had been experiencing budget shortfalls, laid off 29 employees, including Lane. Steve Franks, the community college’s president, later rescinded many of these layoffs. However, the community college eventually eliminated the program for which Lane worked and fired all of its employees.
Lane sued Franks in his individual and official capacities, arguing that Franks had fired Lane in retaliation for his testimony and in violation of the First Amendment. A federal trial court ruled in Franks’ favor. The Eleventh Circuit Court of Appeals affirmed that decision, finding that Lane was not entitled to First Amendment protection for his speech, which, according to the court, Lane had made as an employee, not as a citizen. The case eventually reached the Supreme Court of the United States.
The Court’s Analysis
The Supreme Court acknowledged that the issue of free speech in the context of public employment requires balancing employers’ interests (“in promoting the efficiency of the public services [they] perform”) against those of the employee (“in commenting upon matters of public concern”). Thus, the first question the Court tackled was whether Lane’s testimony constituted speech as a citizen on a matter of public concern.
The Court found that “[t]ruthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes”—even though Lane learned the information about which he testified in the course of his employment. According to the Court, “the mere fact that a citizen’s speech concerned information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech.” Justice Sotomayor also noted that Lane’s testimony had been given on a matter of public concern—namely, corruption in a public program and misuse of state funds. The Court thus concluded that Lane’s testimony was speech as a citizen on a matter of public concern.
The Court next turned to the second question in its First Amendment analysis: Does the government have “an adequate justification for treating the employee differently from any other member of the public” based on its needs as an employer. In this regard, the Court found the employer’s side of the scale to be “entirely empty.” The Court thus concluded that Lane’s speech was entitled to First Amendment protection. The Court also held that Franks is entitled to qualified immunity for the claims brought against him in his individual capacity.
According to the Court, “[s]worn testimony in judicial proceedings is a quintessential example of speech as a citizen.” The court acknowledged that a public employee may have obligations to his or her employer during sworn testimony. But any such obligation, the Court found, is “distinct and independent from the obligation, as a citizen, to speak the truth” on a matter of public concern. The opinion reinforces the Court’s inclination, expressed in the opinion, that “[t]here is considerable value . . . in encouraging, rather than inhibiting speech by public employees” given that they are “in the best position to know what ails the agencies for which they work.”
According to J. Richard Carrigan, a shareholder in the Birmingham office of Ogletree Deakins, the case also included an important qualified immunity claim. Carrigan commented, “Franks had claimed qualified immunity from damages in his individual capacity, arguing that he reasonably could have believed, at the time he fired Lane, that a government employer could fire an employee on account of testimony the employee gave, under oath and outside the scope of his ordinary job responsibilities. The Court concluded that existing precedent did not preclude Franks from reasonably holding that belief and so upheld Franks’ qualified immunity. Officials now must understand that qualified immunity will not protect retaliation against public employees for sworn testimony in judicial proceedings on matters of public concern.”