Eight years ago the United States Supreme Court, in Garcetti v. Ceballos, instructed that speech undertaken pursuant to a public employee’s job duties is “employee” speech and not “citizen” speech, and hence is not protected by the First Amendment. Since issuance of Garcetti, lower courts have wrestled with the task of determining exactly when an employee is speaking pursuant to his or her duties. In Lane v. Franks, the Supreme Court recently provided some, albeit less than many practitioners had hoped, guidance on the issue. In a unanimous opinion released June 19, 2014, the Court succinctly stated that the First Amendment protects a public employee who provided truthful sworn testimony, compelled by subpoena, even when the subject of that testimony is information learned pursuant to the employee’s job responsibilities.
In Franks, the Court addressed the claim of a former director of a community college program that he had been fired in retaliation for providing sworn testimony under subpoena in a criminal prosecution. Reversing the Eleventh Circuit Court of Appeals’ finding that such testimony constituted “employee” speech unprotected by the First Amendment, the Court concluded that the testimony was protected “citizen” speech, even though the testimony pertained to information relating to fraud and corruption learned by the former employee pursuant to his duties as program director. The Court noted: “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”. The Court reasoned that this “independent obligation” to tell the truth renders such testimony “civilian” speech despite the existence of any obligations the employee may owe his employer while testifying (such as the employee’s obligation to dress professionally).
However, and more importantly, because the former program director’s ordinary job duties did not include testifying in court proceedings, the Court refrained from addressing whether this independent obligation to tell the truth would render testimony protected “citizen” speech in circumstances where the very obligation to testify in the first instance arises, at least in part, from the employment relationship. In a concurring opinion written by Justice Thomas and joined by Justices Scalia and Alito, the Court specifically left for another day the “quite different” constitutional questions raised by scenarios where “police officers, crime scene technicians, laboratory analysts” and other employees testify either as a “routine and critical part of their employment duties” or as a representative of their employer in the context of particular litigation.
In light of this limitation, the decision provides little additional guidance with respect to determining when a public employee is speaking as a citizen as opposed to as an employee pursuant to his or her job duties. As the Garcetti opinion itself intimated, and most Circuit Courts of Appeals had already acknowledged, the mere fact that an employee’s speech concerns information acquired by virtue of his employment does not necessarily transform protected “citizen” speech into unprotected “employee” speech. Moreover, the Court ultimately determined that the defendant was qualifiedly immune from liability for any First Amendment deprivation, meaning the former community college employee ultimately did not prevail in his retaliation claim. To this end, the opinion seems intended to merely resolve discord among the Courts of Appeals arising largely from the erroneous opinion of the Eleventh Circuit in this matter.
A Reminder To Connecticut Private Employers
The Connecticut legislature has extended First Amendment retaliation protection to private, as well as public, employees via enactment of Connecticut General Statutes § 31-51q. It has also enacted Connecticut General Statutes § 31-51m, generally prohibiting retaliation against employees who report certain misconduct to a public body (and protecting, inter alia, participation in a court action upon request of a public body). So, the general lesson to employers is to continue exercising care when addressing employees who have possibly exercised their First Amendment rights, testified in court or engaged in whistleblowing activities.