U.S. Supreme Court: Employee Speech Before Grand Jury Is Protected

U.S. Supreme Court: Employee Speech Before Grand Jury Is Protected

WASHINGTON, D.C. — (Mealey’s) An employee’s testimony before a federal grand jury was protected under the First Amendment to the U.S. Constitution because he spoke as a citizen on a matter of public concern, not pursuant to his job responsibilities, a unanimous U.S. Supreme Court ruled June 19; however, the high court found that the individual defendant in that employee’s suit is entitled to qualified immunity because that protection was not clear at the time the employee was fired (Edward R. Lane v. Steve Franks, et al., No. 13-483, U.S. Sup. [enhanced opinion available to lexis.com subscribers. Lexis.com subscribers may access Supreme Court briefs for this case].). 

1st Amendment Violation 

In September 2006, Edward Lane accepted a probationary position as director of Central Alabama Community College’s (CACC) Community Intensive Training for Youth Program (CITY), a program for at-risk youth.  Shortly after taking over, Lane audited CITY’s finances and discovered that then-state Rep. Suzanne Schmitz was listed on CITY’s payroll but was not reporting for work and had not otherwise performed any work for the program. 

When Lane raised his concerns, he was warned by CACC’s then-president and CACC’s lawyer that terminating Schmitz’s employment could have negative repercussions for Lane and CACC.  Despite those warnings, Lane terminated Schmitz’s employment with CITY after Schmitz refused to report to work. 

Schmitz sued, seeking to get her job back.  Schmitz also told another CITY employee that she planned to “get [Lane] back” for terminating her. 

FBI Investigation 

Soon after Schmitz’s firing, the FBI began investigating Schmitz and contacted Lane for information.  Lane testified before a federal grand jury and — pursuant to a subpoena — testified at Schmitz’s August 2008 federal criminal trial for mail fraud and fraud involving a program receiving federal funds. 

Lane testified that Schmitz had not reported to work and had not submitted time sheets.  Lane described a couple of telephone conversations he had with Schmitz during which Lane said Schmitz told him that she had gotten the job through her connections with the executive secretary of the Alabama Education Association.  Lane also said he instructed Schmitz to begin reporting daily to CITY’s Huntsville, Ala., office.  Schmitz refused. 

Lane testified to these facts again at Schmitz’s second criminal trial in February 2009. 

Layoffs Discussed 

In late 2008, as a result of substantial budget cuts, Lane and Steve Franks, president of CACC, began discussing the possibility of employee layoffs, including laying off all probationary employees. 

In January 2009, Franks sent termination letters to 29 CITY employees with less than three years of service, which included Lane.  A few days later, however, Franks rescinded nearly all of those terminations.  Lane was one of only two employees whose termination was not rescinded.  Franks claimed that he rescinded the other terminations after discovering that many of the CITY employees were not, in fact, probationary. 

Lane then sued Franks, in both his official and individual capacities, alleging that Franks terminated him in retaliation for testifying against Schmitz.  Lane alleged in his complaint, filed in the U.S. District Court for the Northern District of Alabama, that his termination violated the First Amendment. 

The District Court granted Franks’ motion for summary judgment, opining that Lane’s speech was made pursuant to his official duties as CITY’s director, not as a citizen on a matter of public concern.  Lane appealed. 

Speech Not Protected 

The 11th Circuit U.S. Court of Appeals affirmed.  “No one disputes that Lane was acting pursuant to his official duties as CITY’s Director when he investigated Schmitz’s work activities, spoke with Schmitz and other CACC officials about Schmitz’s employment, and ultimately terminated Schmitz’s employment.  That Lane testified about his official activities pursuant to a subpoena and in the litigation context, in and of itself, does not bring Lane’s speech within the protection of the First Amendment.  Furthermore, because formal job descriptions do not control, that Lane’s official duties did not distinctly require him to testify at criminal trials falls short of triggering First Amendment protection,” the panel held. 

Lane petitioned the U.S. Supreme Court on Oct. 15, 2013.  The petition was granted Jan. 17.  Susan Burrow was added to the case as a respondent after the petition was granted because she has assumed the position Franks formerly held.  Oral arguments were held April 28. 

Partial Reversal 

The high court reversed the 11th Circuit’s opinion in part.  Justice Sonia Sotomayor wrote for the court:  “In holding that Lane did not speak as a citizen when he testified, the Eleventh Circuit read Garcetti [v. Ceballos (547 U.S. 410 [2006]); See June 2006, Page 5] far too broadly.  It reasoned that, because Lane learned of the subject matter of his testimony in the course of his employment with CITY, Garcetti requires that his testimony be treated as the speech of an employee rather than that of a citizen.  . . .  It does not.  . . .  [T]he mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech.  The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.” 

Justice Sotomayor went on to add that “[t]he importance of public employee speech is especially evident in the context of this case:  a public corruption scandal.  . . .  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.” 

Qualified Immunity 

However, the high court agreed with the 11th Circuit and Franks that the claims against Franks in his individual capacity must be dismissed based on qualified immunity.  “At the time of Lane’s termination, Eleventh Circuit precedent did not provide clear notice that subpoenaed testimony concerning information acquired through public employment is speech of a citizen entitled to First Amendment protection.  At best, Lane can demonstrate only a discrepancy in Eleventh Circuit precedent, which is insufficient to defeat the defense of qualified immunity,” it held. 

In a concurring opinion, Justice Clarence Thomas said the present case requires a “straightforward application of Garcetti.”  He opined that the very different question of whether a public employee speaks as a citizen when testifying in the course of his or her ordinary job responsibilities is not before the court.  “For some public employees—such as police officers, crime scene technicians, and laboratory analysts—testifying is a routine and critical part of their employment duties.  Others may be called to testify in the context of particular litigation as the designated representatives of their employers.  . . .  The Court properly leaves the constitutional questions raised by these scenarios for another day,” Justice Thomas wrote. 

Justices Antonin Scalia and Samuel Anthony Alito Jr. joined in the concurring opinion. 


Tejinder Singh and Thomas C. Goldstein of Goldstein & Russell in Washington represent Lane. 

Attorney General Luther J. Strange III and Solicitor General Andrew L. Brasher of Montgomery, Ala., represent Burrow.  Mark T. Waggoner of Hand Arendall in Birmingham, Ala., represents Franks. Floyd Abrams of Cahill, Gordon & Reindel in New York filed an amicus curiae brief on behalf of the First Amendment Coalition.  Lisa S. Blatt of Arnold & Porter in Washington filed an amicus brief on behalf of the American Civil Liberties Union and the American Civil Liberties Union of Alabama.  David A. Cortman of Alliance Defending Freedom in Lawrenceville, Ga., represents Alliance Defending Freedom. 

Matthew J. Delude of Primmer, Piper, Eggleston & Cramer in Manchester, N.H., filed an amicus brief on behalf of The International Municipal Lawyers Association and the International Public Management Association for Human Resources.  Principal Deputy Solicitor General Ira H. Gershengorn and Solicitor General Donald B. Verrilli Jr. in Washington filed an amicus brief on behalf of the United States. 

Matthew J. Ginsburg of Washington filed an amicus brief on behalf of the American Federation of Labor and Congress of Industrial Organizations.  Stephen M. Kohn of Kohn, Kohn & Colapinto in Washington filed an amicus brief on behalf of the National Whistleblower Center.  J. Michael McGuinness of The McGuinness Law Firm in Elizabethtown, N.C., filed an amicus brief on behalf of The National Association of Police Organizations. 

Alice M. O’Brien of National Education Association in Washington filed an amicus brief on behalf of National Education Association, Service Employees International Union and American Federal of State, County and Municipal Employees, AFL-CIO.  Andrew J. Pincus of Mayer Brown in Washington filed an amicus brief on behalf of Government Accountability Project.  Paul M. Secunda of Bayside, Wis., filed an amicus brief on behalf of law professors.

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