June 20, 2014
WORK-RELATED SPEECH UPDATE
On June 19, 2014, in Lane v Franks, the United States Supreme Court unanimously held that the First Amendment protects a public employee who provides truthful sworn testimony, compelled by subpoena, outside the scope of his/her ordinary job duties. Sworn testimony in a judicial proceeding is a quintessential example of “citizen speech.” Anyone who testifies in court bears an obligation to tell the truth that is separate and distinct from any obligation the testifying public employee may owe to his/her employer. Thus, even testimony concerning information learned solely in the course of employment can be considered citizen speech for First Amendment purposes.
Underlying Dispute and Lower Court Holdings
Edward Lane directed a federally-funded program operated by the Central Alabama Community College. In the course of an audit, Mr. Lane discovered that a state legislator on the program’s payroll was not actually performing any job functions. For that reason, Mr. Lane terminated the legislator from the program.
Subsequently, the legislator became the subject of a federal criminal investigation. Mr. Lane testified, under subpoena, before a grand jury regarding the events that led to his terminating the legislator. After indictment, Mr. Lane testified at the legislator’s trial, which resulted in the legislator being convicted and sentenced to 30 months in prison.
Meanwhile, Mr. Lane’s program experienced financial distress and he recommended that the College consider layoffs. Steve Franks, the College’s President, responded to the financial difficulties by terminating 29 persons, including Mr. Lane. Shortly thereafter, 27 terminations were rescinded, not including Mr. Lane’s termination. Several months later, the College eliminated Mr. Lane’s program entirely and terminated all remaining program employees.
Mr. Lane filed suit, alleging that the College terminated him in retaliation for his testimony against the legislator. The District Court granted summary judgment to the College. Although acknowledging a question of fact as to whether Mr. Lane’s termination was retaliatory, the court held that the First Amendment did not protect Mr. Lane’s testimony. It explained that because he acted pursuant to his official duties when he investigated and terminated the legislator’s employment, he testified as an employee and not as a citizen. The Eleventh Circuit affirmed.
Supreme Court Decision
Justice Sotomayor, writing for the Court, emphasized the importance of truthful testimony under oath by public employees. She noted that prosecutions of public corruption scandals “often require testimony from other government employees.” The Court held that the lower courts erred in determining that Mr. Lane lost First Amendment protection because his testimony concerned information he learned during the course of his employment.
This case presented a fact scenario squarely at the intersection of public employee job functions and private citizen speech. In finding Mr. Lane’s speech protected by the First Amendment, Justice Sotomayor stated that the critical question is whether speech is pursuant to official duties—not just concerning those duties. Mr. Lane’s testimony concerned information learned while performing his official duties; however, he did not testify pursuant to his official duties because his “ordinary job responsibilities did not include testifying in court.”
Supreme Court precedent had addressed related fact scenarios and yielded different results. In Pickering v. Board of Education (1968), the Supreme Court concluded that First Amendment protections extended to personal opinion speech that was not pursuant to official duties (a schoolteacher’s newspaper editorial). The 2006 decision in Garcetti v. Ceballos found that First Amendment protections do not extend to speech pursuant to official duties and that addresses official duties (a prosecutor’s internal memorandum about case handling).
The only remaining question in Lane concerning First Amendment protection was whether the speech involved a matter of public concern. Under these facts, the Supreme Court wasted little time concluding that it did and therefore deserved protection.
The Lane decision illustrates how important it is for public employers to craft job descriptions that accurately reflect duties, including the duty to testify. If it was foreseeable that Mr. Lane would audit his program and also testify truthfully on behalf of the program if an audit revealed criminal activity, then the College missed an opportunity to insulate itself from this lawsuit through a well-crafted job description.
In the wake of Lane, public employers ought to review job duties and written position descriptions. Specifically, they should identify those employees who foreseeably may represent the employer in public or in court and ensure that written position descriptions accurately reflect those duties.
Notably, Lane does not directly or significantly impact those public employees who are clearly required to testify in court as part of their employment duties (for example, police officers and representative witnesses). Justice Thomas, in a concurring opinion joined by Justices Scalia and Alito, observed that such employees testify as a “routine and critical part of their employment duties” and that the Supreme Court had “properly le[ft] the constitutional questions raised by these scenarios for another day.”
Bullard Law will continue to follow work-related speech issues and other issues of interest to public employers. Please feel free to contact us anytime with any questions about Lane or any other labor, employment, or benefits issues.