Supreme Court Clarifies Scope of First Amendment Protections For Public Employees

 In Lane v. Franks et al., the Supreme Court unanimously held today that when a public employee testifies truthfully outside of the scope of ordinary job duties, he or she testifies as a private citizen and not as a public employee for purposes of First Amendment protections [lexis.com subscribers may access Supreme Court briefs and the opinion for this case]. This remains the case even when the testimony in question relates to the public employee's job or concerns information that the employee learned through employment. The distinction between testimony as a public employee and as a private citizen is more than academic. As a private citizen speaking on matters of public importance, a public employee is entitled to First Amendment protections, and those protections prevent public employers from firing or taking other adverse employment actions against their employees on the basis of that speech.

Here is how the issue arose. In 2006, Central Alabama Community College appointed Edward Lane as the probationary director of Community Intensive Training for Youth (CITY), a statewide program for under-privileged youth that received federal funds for a portion of its budget. A comprehensive audit of the program's expenses revealed that Alabama State Representative Suzanne Schmitz was on CITY's payroll, yet was not reporting to CITY's offices for work. All told, Schmitz had received $177,251 from CITY but had provided "virtually no services" and "generated virtually no work product." When Schmitz refused to report for work at CITY's Huntsville offices as Lane directed, he terminated her. The termination triggered a federal investigation into Schmitz's employment with CITY, and Lane later testified to a federal grand jury regarding his reasons for terminating Schmitz. The grand jury returned indictments on charges of federal mail fraud and theft concerning a program receiving federal funds.

Following Lane's testimony, the Community College, and its then-president, Steve Franks, decided to cancel the CITY program all together and terminate Lane's employment. Lane sued Franks in his personal and official capacity, asserting that Franks fired him in retaliation for testifying against Schmitz. Specifically, Lane brought claims under § 1983 of the Civil Rights Act, alleging that Franks had violated his First Amendment rights to speak as a private citizen on matters of public concern.

The district court granted summary judgment and the Eleventh Circuit Court of Appeals affirmed summary judgment on the basis of qualified immunity. Because the content of Lane's testimony exclusively addressed matters he learned about as a result of his job as CITY director, the Eleventh Circuit found that Lane had testified not as a private citizen but rather as a public employee. As a public employee, the Eleventh Circuit held, Lane was entitled to no First Amendment protection when testifying.

The Supreme Court rejected the Eleventh Circuit's reasoning. Writing for the Court, Justice Sonia Sotomayor, stated that,

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.

Nonetheless, with respect to the claims against Franks in his personal capacity, the Court affirmed the Eleventh Circuit and held that Franks was entitled to qualified immunity because at the time it had not been conclusively established by the Eleventh Circuit or by the Supreme Court that this kind of testimony was entitled to First Amendment protection. The Court remanded the case to the Eleventh Circuit to determine whether Lane may pursue equitable relief against the college's current president in her official capacity.

With this decision, public employers are put on notice: When employees who do not normally testify as part of their workplace responsibilities truthfully provide testimony about matters they learned about while on the job, that testimony is subject to First Amendment protection. Absent some overwhelming governmental interest in treating the employee differently from any other member of the general public, action against the public employee is impermissible, and governmental officials may be held personally liable for the Constitutional deprivation of the employee's First Amendment rights.

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