SCOTUS on Public Employee Free Speech

SCOTUS on Public Employee Free Speech

 We're coming down the home stretch of another SCOTUS season. We still have a few labor and employment law cases left (Noel Canning and Harris v. Quinn) - we should have decisions in the next week or two. Yesterday, the Supreme Court issued its opinion in Lane v. Franks [enhanced opinion available to lexis.com subscribers].

In public employee free speech cases, the courts generally balance the government's interest in managing its employees with the individual's right to speak freely on matters of public concern without government interference.

The big takeaway from Lane v. Franks is:

Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment.

The employee in this case, the director of a program receiving federal funding, had testified under subpoena in a criminal trial against a state representative who was on the payroll until the director terminated her. The director himself was subsequently terminated. He claims he was fired in retaliation for his testimony.

The Court recognized that the testimony was protected by the First Amendment. However, the analysis must weigh the individual's interest against the government's needs as an employer (the Pickering balancing test). Here the Court held that the government's side of the Pickering scale was "entirely empty."

Frankly, this seems like an easy case to me - and the Court was unanimous in its decision. Justice Thomas (joined by Scalia and Alito) wrote a concurring opinion to explain that this case did not address employees who testify as part of their job duties (like a designated representative or a police officer who testifies regularly as part of his or her job duties).

Sidenote: The employee in this case won, but still lost, as the defendant was granted qualified immunity. The employee also has a remaining claim that was not addressed by this decision.

 Read additional employment law articles on Philip Miles’ blog, Lawffice Space.

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