Executive Summary: The U.S. Supreme Court recently held that a public employee's truthful sworn testimony, under subpoena, which was not part of his ordinary job duties, was entitled to First Amendment protection. See Lane v. Franks (June 19, 2014).
In this case, the plaintiff, Lane, was employed by a program operated by a community college. As part of his job, Lane determined that a state legislator who was on the program's payroll had not been reporting to work. He discharged her and subsequently testified against her in a criminal trial in which she was convicted of mail fraud and theft.
The college president, Franks, subsequently terminated Lane, allegedly due to financial concerns. Lane then sued Franks in his official and individual capacities under 42 U.S.C. § 1983, claiming Franks violated the First Amendment by terminating him in retaliation for his testimony.
The federal trial court ruled in favor of Franks, and the Eleventh Circuit affirmed this decision. The Eleventh Circuit held that Lane testified as an employee, not a citizen, and thus, was not entitled to First Amendment protection. The Supreme Court granted certiorari to determine whether public employees may be subjected to an adverse employment action for providing truthful testimony outside the scope of their ordinary job responsibilities.
The Supreme Court's Ruling
The Supreme Court unanimously held that Lane's testimony was protected by the First Amendment because he testified as a citizen, not an employee, regarding a matter of public concern, and the government failed to demonstrate any interest that outweighed his right to speak. The Court also held, however, that Franks was entitled to qualified immunity for his actions in discharging Lane. Thus, the Court affirmed the Eleventh Circuit's decision as to the claims against Franks in his individual capacity. The Court remanded the case to the Eleventh Circuit to determine the issue of the liability of Franks' successor in her official capacity (initially brought against Franks).
Speech by a Citizen, Not an Employee
Relying heavily on fifty-year-old precedent, the Court looked to the balancing test from Pickering v. Board of Education of Townsend High School District 205. Pickering requires balancing the rights of the employee, as a citizen, in commenting on matters of public concern against the interests of the state, as an employer, in promoting the efficiency of its public services. If the employee is speaking pursuant to his typical job duties, he is not speaking as a citizen. If, however, the employee is speaking as a citizen on a matter of public concern, outside the scope of his ordinary job responsibilities, the question then becomes whether the employer can treat him any differently than it would treat a member of the general public.
Here, the Court found that Lane's testimony was speech as a citizen. According to the Court, anyone testifying under oath bears an obligation to tell the truth. The Court noted, "sworn testimony in judicial proceedings is a quintessential example of speech as a citizen." While an employee may have obligations to his employer, these obligations are distinct from his obligation as a citizen to speak the truth. The Court held that the fact that Lane learned of the subject matter of his testimony during the course of his job did not require his testimony to be treated as that of an employee rather than a citizen.
Matter of Public Concern
The Court also held that Lane's testimony was speech on a matter of public concern. Whether speech is a matter of public concern turns on the content, form, and context of the speech. In this case, the Court found that corruption in a public program and misuse of state funds involve matters of significant public concern.
The Government's Interests did not Trump Lane's Rights
However, a public employee's testimony is not automatically entitled to First Amendment protection merely because it is speech by a citizen on a matter of public concern. In analyzing a First Amendment claim, the Court must also determine whether the government had an adequate justification for treating the employee differently from any other member of the public based on the government's needs as an employer. If the government is able to provide an adequate justification for its actions, such as a legitimate interest in fulfilling its duties to the public, then the government's interests may trump the employee's First Amendment rights. In this case, however, the Court held that Franks and the college failed to show any such justification. Accordingly, the Court held that Lane's testimony was protected by the First Amendment, and the Eleventh Circuit erred in holding otherwise.
Limited Scope of Decision
In his concurrence, Justice Thomas emphasized the limited scope of this decision, noting that Lane's testimony was outside his typical job duties. Consequently, the decision does not address the rights of employees, such as police officers and laboratory analysts, who testify within the ordinary course of their responsibilities.
Employers' Bottom Line:
While the Supreme Court relied heavily on precedent, it simultaneously expanded potential whistleblower protections. The Court clearly stated that the First Amendment protects a public employee who has provided truthful sworn testimony. Although the Court was careful to limit this decision to public employees testifying outside the scope of their employment, it is not difficult to imagine lower courts expanding this decision to protect testimony in other situations. Employers should continue to be vigilant in ensuring that adverse employment decisions are supported by legitimate, non-retaliatory reasons.