Supreme Court Backs Speech Protection for Sworn Public-Employee Testimony
[UPDATED 1:40 p.m. Thursday with reaction.]
The U.S. Supreme Court in a unanimous ruling on Thursday gave public employees such as teachers and administrators stronger First Amendment speech protections when they testify under oath.
The decision came in the case of the head of an at-risk youth program administered by an Alabama community college who was fired after he testified against a state legislator who held a no-show job. Lower courts had ruled that Edward R. Lane's grand jury testimony was not protected speech because he was acting pursuant to his official job duties.
But in Lane v. Franks (Case No. 13-483), the Supreme Court said Lane's sworn testimony was outside the scope of his ordinary job duties and was protected under the First Amendment as speech by a citizen on a matter of public concern.
"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," Justice Sonia Sotomayor wrote for the court.
She noted some of the key precedents on the regulation of speech by public employees, including Pickering v. Board of Education, a 1968 ruling which established the multi-part legal test for evaluating whether such speech was protected under the First Amendment.
Under the Pickering test, which arose out of a case involving a high school teacher's letter to a newspaper complaining about the school budget, a public employee's speech is protected if it is on a matter of public concern and if the employee's interest outweighs the public employer's interest in an efficient workplace.
Sotomayor said "it bears emphasis that our precedents dating back to Pickering have recognized that speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment."
Sotomayor said that when the U.S. Court of Appeals for the 11th Circuit, in Atlanta, held that Lane did not speak as a citizen when he testified, it read too much into a more recent Supreme Court precedent on public-employee speech. The appeals court relied on Garcetti v. Ceballos, a 2006 decision by the high court that public employees do not speak as citizens when they speak pursuant to their job duties.
"The sworn testimony in this case is far removed from the speech at issue in Garcetti—an internal memorandum prepared by a deputy district attorney for his supervisors recommending dismissal of a particular prosecution," Sotomayor said. "But Garcetti said nothing about speech that simply relates to public employment or concerns information learned in the course of public employment."
A No-Show Lawmaker
In the Alabama case, Lane was hired in 2006 by Central Alabama Community College as acting director of the Community Intensive Training for Youth program. Lane found a state legislator on the program's payroll who wasn't showing up for work very often.
When Lane confronted the lawmaker, state Sen. Suzanne Schmitz, she allegedly told him she got the job through the influence of a top state teachers' union official, court papers say. One of Lane's supervisors at the community college warned him he better tread carefully lest he provoke retaliation from Schmitz or the legislature.
Unbowed, Lane ordered Schmitz to start reporting for work every day. When she refused, Lane then fired the state senator from the no-show job. Schmitz vowed retaliation, telling another program employee that if Lane ever sought funding from the legislature, she would tell him, "You're fired."
However, Schmitz's no-show job, for which she collected more than $177,000 over several years, drew the attention of federal prosecutors. Lane was subpoenaed to testify about what he knew, and a grand jury indicted Schmitz on multiple counts of mail fraud and fraud in connection with a program receiving federal funds.
Lane also testified under subpoena at Schmitz's two criminal trials. After the first one ended in a mistrial, Schmitz was convicted in her second trial of mail fraud and other charges.
In 2009, just after Lane had testified at the first trial, the then-president of the community college, Steve Franks, fired Lane, ostensibly for financial reasons. Lane then filed his lawsuit alleging that Franks either collaborated with Schmitz or was pressured by her to terminate Lane in retaliation for his testimony.
The National Education Association and other public-employee unions had filed a friend-of-the-court brief on Lane's side, saying that the case could affect the freedom of teachers and other education professionals to speak openly about controversial issues.
"NEA and its members further believe that when public sector employees give sworn testimony, such testimony is necessarily a matter of public concern and may not be the basis for any adverse employment action against the employee," the brief said.
In a statement on Thursday, NEA President Dennis Van Roekel said the union was pleased that the court recognized that Lane's testimony was speech as a citizen on a matter of public concern. But he said the NEA was disappointed the justices "did not go further to establish a clear rule that sworn testimony by public employees should never be the basis for any retaliatory action by a public employer."
"The court's decision was too narrow," Van Roekel said. "Public employees who have the courage to stand up and speak out to improve public services and prevent corruption should be protected from retaliation."
Justice Sotomayor stressed repeatedly in her opinion that public employees are uniquely qualified to comment on government matters that are of interest to the public at large.
"The importance of public employee speech is especially evident in the context of this case: a public corruption scandal," Sotomayor said. "It would be antithetical to our jurisprudence to conclude that the very kind of speech necessary to prosecute corruption by public officials—speech by public employees regarding information learned through their employment—may never form the basis for a First Amendment retaliation claim. Such a rule would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs."
The court also agreed unanimously that even though Lane's testimony was protected by the First Amendment, that Franks, the former president of the community college who had fired Lane, was protected from personal liability by qualified immunity because the protection for sworn testimony was not clearly established at the time Franks acted.
Lane's case was sent back to the lower courts, where he still has the possibility of recovering from the community college itself and its current president under her official capacity.
Justice Clarence Thomas filed a short concurrence, joined by Justices Antonin Scalia and Samuel A. Alito Jr., saying he did not read the majority opinion as affecting cases in which public employees routinely testify as part of their official job duties, such as police officers, crime scene technicians, and laboratory analysts.