Last week the U.S. Supreme Court issued an important decision affecting public employers and employee First Amendment rights to free speech. Lane v. Franks et al., No. 13-483 (U.S. June 19, 2014). Central Alabama Community College (CACC) hired Edward Lane to run a city youth program. Lane audited the youth program, learned that a State congresswoman was on the payroll of the program but never worked for it, reported his findings to his superiors, and fired the congresswoman after being warned by his superiors that the firing could have negative consequences for Lane and CACC. Lane subsequently testified truthfully against the congresswoman in a subsequent criminal trial when he was subpoenaed to appear at the trial, and she was convicted and sentenced to 30 months in prison. CACC then fired Lane, pointing to the financial distress of the youth program.
Lane sued CACC and its President, claiming that he was fired for testifying against the congresswoman in her criminal proceedings. Importantly, Lane sued the President in both his individual and official capacities, and sought damages and equitable relief. Both the trial court and the Eleventh Circuit Court of appeals threw out the case against the President. Both courts concluded that Lane’s trial testimony was part of his employment duties and was, therefore, not protected under the First Amendment. Both courts also held that Lane’s claims against the President in his personal capacity were entitled to qualified immunity.
The Supreme Court reversed, finding that Lane’s testimony was protected by the First Amendment because it was public speech that was not part of Lane’s ordinary job duties. The Supreme Court affirmed the dismissal of Lane’s claim against the President in his personal capacity only, because the President was entitled to a qualified immunity in light of the unsettled nature of this area of First Amendment law. In doing so, the Supreme Court significantly expanded the scope of First Amendment-protected speech for public sector employees, reigning back what many believed was a broad pro-employer standard previously established by the Court in Garcetti v. Ceballos, 547 U.S. 410 (2006).
The Supreme Court previously ruled in Garcetti that a prosecutor’s internal memorandum written in the course of his job responsibilities did not constitute protected speech because he was speaking as a government employee pursuant to his job responsibilities, and not as a public citizen. The Lane case tests the boundaries of the government employee/public citizen dichotomy. Does a government employee act as a public citizen when he testifies pursuant to a subpoena with respect to matters directly involving his work?
The Supreme Court resolved a circuit court split by holding that, when a government employee testifies under compulsion of a subpoena, and such testimony is not part of the employee’s regular job responsibilities, the speech is generally entitled to protection, with certain exceptions. The Court also recognized that this clarification of its holding in Garcetti was not clearly established, which allowed the President to invoke a qualified immunity defense against the personal capacity claim.
First, the Court held that testimony under oath by a public employee constitutes speech as a private citizen when the testimony is outside the scope of the employee’s ordinary job duties. The Court noted that sworn testimony in court is a “quintessential example of speech as a citizen” because everyone who testifies in court owes a duty to the court and society as a whole to tell the truth. While the Eleventh Circuit held that Lane’s speech was not public because he learned of matters to which he testified in the course of performing his job, the Supreme Court held that this reads Garcetti far too broadly. Speech that relates to public employment or that concerns matters learned in the course of public employment does not make the speech any less public. The only question to ask is whether the actual speech itself falls within the employee’s duties, not whether its subject matter arises out of those duties.
Second, the Court had no trouble concluding that Lane’s speech activities reached a matter of public concern. Lane testified with respect to matters of corruption and misuse of state or federal funds. This is precisely the sort of speech activity the First Amendment was intended to protect and encourage.
Third, the Court recognized that even when speech is public speech, a public employer’s interests may outweigh the interests of the citizenry to speak openly on public matters. Here, however, the employer could point to no legitimate governmental interest that would outweigh the right to free speech. The employer did not allege, for example, that Lane’s testimony was false or erroneous. Nor did the employer assert that Lane unnecessarily disclosed sensitive, confidential, or privileged information in the course of testifying.
Finally, the Court agreed with the Eleventh Circuit that the President was entitled to a qualified immunity on the claim against him in his personal capacity because the law was unsettled as to the protected nature of Lane’s testimony at the time he fired lane.
The decision of the Court was unanimous. However, Justice Thomas, joined by Justices Scalia and Alito, submitted a concurring opinion that, rather tersely, notes the specificity of the issue presented, and leaves for another day a ruling on testimonial speech that is part of an employee’s regular work duties.
There is an obvious takeaway and several unanswered questions raised by the opinion.
Public sector employers should not fire an employee simply because he/she testifies in a court of law under oath without making a searching inquiry of this decision and what will be its progeny.
Would this result have been different had Lane voluntarily testified against the congresswoman? The Court repeats over and over that Lane was subpoenaed to testify, and this emphasis might imply a different result if Lane simply chose to testify by his own free will.
Does the First Amendment protect testimonial speech that is false, erroneous, or unnecessarily reveals confidences, privileged information, or other confidential information? The Court’s repeated recognition that Lane’s speech was truthful certainly implies that the First Amendment would not reach so far.
Does the First Amendment apply to those who regularly testify as part of their job duties, such as law enforcement, crime scene specialists, toxicologists, and others? The opinion seems to suggest that such speech is not protected, but the concurring decision states that the opinion does not and cannot answer this question.
How much of one’s job duties must involve testimonial speech for such speech to lose First Amendment protection? Does a public employee lose First Amendment protection when called to testify on behalf of the employer as a Rule 30(b)(6) employer representative?
How does this opinion affect non-testimonial speech, if at all? Is the case limited to public employees who testify, or does this “regular duties” test apply to all forms of public speech? The manner in which the Court distinguished Garcetti seems to suggest that the opinion will apply to all forms of public speech. This could create problems for a public employer seeking summary judgment in a run-of-the-mill employee speech case because the test seems to require a fact-intensive inquiry into the employee’s job duties as they relate to the type of speech at issue in the case.
The Lane decision certainly cuts back dramatically on the scope of the Garcetti decision, but it appears to raise more questions than it answers, a point made clear by Justice Thomas’s concurrence. As always, public employers must tread lightly when disciplining or firing employees for what they choose to say.