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Supreme Court Decides First Amendment Protects Testimony by Public Employees

Tags:  (2014 Jun 19th)

In a unanimous decision on June 19, the United States Supreme Court ruled in the case of Lane v. Franks that the First Amendment protects a public employee who provides truthful sworn testimony outside the scope of his ordinary job responsibilities. According to Justice Sotomayor who wrote the opinion, “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.” IPMA-HR had filed an amicus brief in support of the employer in this case.

The Supreme Court limited the scope of this decision to those employees whose ordinary job responsibilities did not include testifying in court proceedings. A footnote states that it expresses no opinion as to whether truthful sworn testimony would constitute citizen speech when given as part of a public employee’s ordinary job duties. In a concurring opinion, Justice Thomas who was joined by Justice Scalia and Justice Alito noted that the Supreme Court did not address the “quite different question whether a public employee speaks as a citizen when he testifies in the course of his ordinary job responsibilities.” Justice Thomas cited police officers, crime scene technicians, and laboratory analysts as public employees whose job duties routinely include testifying. He concluded that “the Court properly leaves the constitutional questions raised by these scenarios for another day.”

In 2006, Central Alabama Community College hired Edward Lane as the Director of Community Intensive Training for Youth (CITY), a statewide program for underprivileged youth. Lane was responsible for overseeing the day-to-day operations, hiring and firing employees, and making decisions with regards to the finances of the program. Due to significant financial difficulties, Lane conducted a comprehensive audit of the program’s expenses. The audit revealed that Suzanne Schmitz, an Alabama State Representative was on the payroll but had not been reporting to work. He instructed her to report to work and she refused. Lane subsequently fired her. The FBI launched an investigation into Schmitz’s employment. In November 2006, Lane testified before a federal grand jury about his reasons for firing Schmitz. She was subsequently indicted in January 2008 for mail fraud and theft concerning a program receiving federal funds. She was alleged to have collected close to $180,000 in federal funds even though she performed virtually no services. The jury failed to reach a verdict and she was retried, with Lane testifying in both trials. This time, the jury convicted her and she was sentenced to prison and ordered to make restitution.

CITY continued to experience considerable budget shortfalls and in November 2008, Lane recommended that layoffs be considered to address the financial difficulties. In January 2009, 29 probationary employees including Lane were terminated. Shortly thereafter, all but 2 of the 29 terminations were rescinded due to an ambiguity as to whether the other employees were in a probationary status. In September 2009, the CITY program was eliminated and all remaining employees were terminated. In January 2011, Lane filed this lawsuit alleging that the First Amendment had been violated by his being fired in retaliation for his testimony against Schmitz. The District Court and the Eleventh Circuit Court of Appeals ruled in favor of the employer. The Supreme Court agreed to review the case due to a split among the Courts of Appeals on this issue.

In the 1968 case of Pickering v. Board of Education of Township High School District 205, Will County, the Supreme Court extended First Amendment protection to a teacher who was fired after writing a letter to the editor of a local newspaper criticizing the school board that employed him. The Supreme Court believed that there was a need to balance “the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer in promoting the efficiency of the public services it performs through its employees.” In the 2006 case of Garcetti v. Ceballos, the Supreme Court established a two-step inquiry into whether a public employee’s speech is entitled to protection. The first step is a determination as to whether the employee spoke as a citizen on a matter of public concern. If so, the question becomes whether the government had an adequate justification for treating the employee differently from members of the public. The Supreme Court in the Garcetti case held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes and the Constitution does not insulate their communications from employer discipline.”

In applying the Garcetti test, the Supreme Court believed that “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 Supreme Court placed emphasis on the testimony being presented in a public corruption case. It cited an amicus brief filed by the United States noting that more than 1,000 federal prosecutions for corruption offenses are brought in a typical year and they often depend on evidence about actions that government officials undertook while in office. The Supreme Court 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.”

The Supreme Court found that the employer was unable to demonstrate any government interest that would tip the balance in its favor. No evidence was presented that Lane’s testimony was false or that he unnecessarily disclosed any sensitive, confidential, or privileged information. In a footnote, the Supreme Court stated however, that “wrongdoing that an employee admits to while testifying may be a valid basis for termination or other discipline.”

Please contact Neil Reichenberg, IPMA-HR executive director at nreichenberg@ipma-hr.org for more information about this decision.