Recently, the United States Supreme Court granted certiorari to resolve whether a public employee’s testimony in response to a subpoena is entitled to First Amendment protection where providing such testimony is outside the scope of the employee’s ordinary job duties. Applying its earlier precedents set forth in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty. (1968) 391 U.S. 563, 568 (“Pickering”) and Garcetti v. Ceballos (2006) 547 U.S. 410 (“Garcetti”), the high Court concluded that public employee testimony is entitled to First Amendment protection where the employee’s regular job duties do not include testifying under oath and the employee’s speech relates to a matter of public concern. Nonetheless, the Court concluded the employee’s supervisor was entitled to qualified immunity in his individual capacity. (Lane v. Franks, --- S.Ct. ----, U.S., June 19, 2014).
The Court specifically noted that it was not addressing whether truthful sworn testimony would constitute citizen speech where giving such testimony was part of a public employee’s ordinary job duties.
Edward Lane (“Lane”), a former program director for Central Alabama Community College (“CACC”), sued his supervisor, Steve Franks (“Franks”), for violation of his First Amendments rights when his probationary employment was terminated following his testimony before a grand jury.
Lane’s testimony was subpoenaed upon the indictment of a former employee of the program on charges of mail fraud and theft concerning a program receiving federal funds. Prior to the indictment, Lane learned through an audit of the program’s expenses that the employee had been collecting a paycheck, yet not reporting for work. Although he was warned by Franks that “negative repercussions for him and CACC” might result if he terminated the employee’s employment, Lane fired her anyway.
In the months that followed, Lane was subpoenaed to testify before a grand jury regarding the events that led to his terminating the employee. He testified truthfully pursuant to subpoena on two occasions. Following Lane’s second round of testimony, the employee was convicted and sentenced. Subsequently, Lane was terminated by Franks.
The District court granted Franks’ motion for summary judgment on Lane’s claim for violation of his First Amendment rights. Although it found genuine issues of material fact existed, it concluded that Franks was entitled to qualified immunity due to his reasonable belief based on Garcetti that the Constitution did not protect Lane’s testimony. In Garcetti, the Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.” The Court concluded that Franks reasonably believed Lane’s testimony was made pursuant to his official duties because Lane learned of the information he testified about while working as a program director. After the Eleventh Circuit affirmed, Lane sought, and the Supreme Court granted, certiorari.
The Court began its discussion by reciting the underlying framework set forth in Pickering for analyzing a public employer’s regulation of employee speech under the First Amendment. In Pickering, the Court held that this analysis requires “balanc[ing] … the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
The Court then applied the two-part test set forth in Garcetti for determining whether public employee speech is entitled to First Amendment protection. First, it found that in giving his testimony, Lane spoke as a citizen on a matter of public concern. In reaching this conclusion, the Court noted that the critical question was whether the speech itself was one of Lane’s typical job duties, not whether it merely concerned those duties. Although the subject matter of Lane’s testimony related to his job, Lane’s speech was given as a citizen, not as a public employee, because testifying under oath was not one of the typical duties of his job.
The Court also concluded that Lane’s testimony constituted speech on a matter of public concern. It noted that speech pertains to a public concern where it can be “fairly considered as relating to any matter of political, social, or other concern to the community.” Because Lane’s testimony involved “corruption in a public program and misuse of state funds,” the Court easily concluded it to be of concern to the public.
Upon finding that Lane’s testimony constituted speech by a citizen on a matter of public concern, the Court turned to the next step in the inquiry – whether Franks 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.” The Court noted that Franks did not demonstrate, or even assert, any interest tipping the balance in his favor. On this basis, the Court concluded that Lane’s testimony was entitled to First Amendment protection.
Nonetheless, the Court ultimately concluded that Franks could not be sued in his individual capacity because he was entitled to qualified immunity. The qualified immunity doctrine provides that “a court cannot award damages against a government official in his personal capacity unless ‘the official violated a statutory or constitutional right,’ and ‘the right was clearly established at the time of the challenged conduct.’” Because Eleventh Circuit precedent was not clear as to whether a public employer could terminate an employee on the basis of testimony given under oath outside of an employee’s normal job duties, the Court held that the right was not clearly established, and afforded qualified immunity to Franks.