It has long been recognized that public employees are not excluded from First Amendment protection, and for more than 40 years the courts have wrestled with balancing the free speech rights of a public employee against the interest of the public employer in controlling the operation of the workplace to ensure efficient delivery of public services. Under Supreme Court precedents, the test for determining whether the speech is protected by the First Amendment requires an initial showing that the employee spoke as a “citizen” on a matter of “public concern.” These terms of art are significant, because if the public employee’s speech is pursuant to the employee’s “official duties,” then the speech is not entitled to First Amendment protection. In yesterday’s unanimous decision in Lane v. Franks, the Court applied this firmly-established legal standard, and ruled that a public community college employee’s truthful subpoenaed testimony in a public corruption trial was protected speech under the First Amendment. Although the employee’s testimony addressed information he learned during the course of his employment, testifying in court proceedings was not within the scope of his ordinary job duties, and therefore his testimony was protected even though it concerned those duties.
The Court’s narrow decision does not establish a new standard for analyzing whether a public employee’s speech is entitled to First Amendment protection; nor does it create a bright line rule that any public employee who testifies pursuant to a subpoena is automatically entitled to First Amendment protection. Indeed, the Court made clear that it was expressing no opinion as to whether the result might be different for public employees whose ordinary job duties involve testifying in court. In a concurring opinion, Justice Thomas noted that this could include public employees such as police officers, crime scene technicians and lab analysts. The Court’s decision illustrates that determining whether an employee’s speech is constitutionally protected is a fact-intensive inquiry, and it is hazardous to leap to the conclusion that simply because a public employee’s speech concerned their official duties the speech is not protected. Public employers must, therefore, be mindful of this issue before taking adverse action against an employee for his or her speech. A summary of the Lane case and analysis of the Supreme Court’s decision follows.
Summary of the Case
Edward Lane was employed by Central Alabama Community College as the director of a youth program. In conducting an audit of the program’s expenses, Lane discovered that an Alabama state legislator, Suzanne Schmitz, who had done no work for the program, was on the program’s payroll. When Lane notified the College’s President and attorney of his discovery, they warned Lane that firing Schmitz could have negative repercussions for both him and the College. Nonetheless, Lane terminated Schmitz’s employment. Schmitz was later indicted as part of a larger public corruption scandal on criminal charges including theft of federal funds. Lane was subpoenaed as a witness, and he testified at Schmitz’s criminal trial. Not long after testifying, the College’s then-President, Steve Franks, terminated Lane’s employment, purportedly to address the College’s budget shortfalls.
Lane sued Franks alleging that Franks had violated his First Amendment free speech rights by terminating him in retaliation for testifying at the criminal trial. The federal trial court ruled in favor of Franks, and the Eleventh Circuit Federal Court of Appeals affirmed. The Eleventh Circuit held that Lane’s testimony was not entitled to First Amendment protection because he acted pursuant to his official duties as a College employee when he investigated Schmitz’s employment and later terminated her.
The Supreme Court began its decision by reaffirming the oft-quoted proposition that individuals do not surrender their First Amendment rights by accepting public employment. Determining whether a public employee’s speech is protected under the First Amendment requires courts to balance the competing interests of the employee and the governmental employer. The Court also acknowledged the applicable two-step test as articulated in its most recent public employee speech case, Garcetti v. Ceballos. Under the first step, a court must determine whether the employee spoke as a citizen on a matter of public concern; if not, the employee’s speech is not protected. If the employee’s speech satisfies this initial step, a court must then determine whether the governmental employer was nonetheless justified in treating the employee differently from any other member of the general public.
Applying the two-step Garcetti test, the Supreme Court held that Lane’s truthful sworn testimony was protected speech under the First Amendment. The Court first concluded that Lane’s testimony “clearly” satisfied the first step, noting that sworn testimony in a court proceeding is a “quintessential example of citizen speech” because anyone who testifies in court has an obligation, to both the court and society at large, to tell the truth. The Court noted that this obligation was separate and distinct from any obligations a testifying public employee might have to his (or her) employer. The fact that Lane’s testimony addressed information he learned during the course of his employment was irrelevant. Rather, the appropriate question is whether the speech itself is ordinarily within the scope of the employee’s duties, not whether it merely concerns those duties. As the director of the College’s youth program, Lane’s ordinary duties did not involve testifying in court. Furthermore, Lane’s testimony unquestionably involved a matter of public concern – corruption and misuse of state funds. Proceeding to the second step of the Garcetti test, the Court found that the College had no interest or justification that would warrant treating Lane differently. Lane had not, for example, provided false testimony, disclosed confidential or sensitive information, or admitted to engaging in wrongdoing.
The Court did, however, affirm the Eleventh Circuit’s determination that Franks was entitled to qualified immunity, a legal doctrine which insulates public officials from individual liability when they make reasonable but mistaken judgments. The Court found that when Franks fired Lane, he reasonably could have believed that doing so would not violate the First Amendment as the only courts who had addressed similar issues as of that point in time had issued conflicting decisions.
Analysis of the Decision
The Supreme Court’s decision in Lane v. Franks reversed what some commentators had described as an errant opinion from the Eleventh Circuit that directly conflicted with decisions from other federal appellate courts, including the Seventh Circuit. Significantly, the Court left intact the governing standards under Garcetti and prior decisions for determining whether a public employee’s speech is protected under the First Amendment. The precedential value of this narrow decision remains to be seen. The Court could have held, but did not, that a citizen’s obligation to testify truthfully is always entitled to First Amendment protection as “citizen speech,” even where the testimony is part of the public employee’s official duties. That the Court went out of its way to emphasize that it was expressing no opinion on that question is a caution to public employers that this issue remains unsettled.