Supreme Court gives one to the workers

The Supreme Court has ruled that public employees who testify truthfully in court outside the scope of their job responsibilities cannot be disciplined under the First Amendment. The case represents only the second time in eight years that the Court has addressed the free speech rights of public workers.

The case is Lane v. Franks, decided on June 19. The plaintiff, Lane, oversaw a statewide training program for young people, handling day-to-day operations and looking after the program's finances. When Lane audited the program's finances, he discovered that an employee, Schmitz, was on the payroll but not doing any work. Lane fired Schmitz, who was arrested for theft and mail fraud in connection with her no-show job. After Lane testified against Schmitz in the Grand Jury and at trial, she was convicted. Twenty nine people from Lane's program were then fired, but 27 of the were brought back. Lane remained unemployed, however. His lawsuit alleges he was fired in violation of the First Amendment.

In Garcetti v. Ceballos (2006), the Supreme Court distinguished between citizen (protected) and employee (unprotected) speech, holding that the First Amendment does not protect public employees who testify pursuant to their official job duties. Although Kane claims he was fired because he testified in court, the Eleventh Circuit dismissed the case, reasoning, "even if an employee was not required to make the speech as part of his official duties, he enjoys no First Amendment protection if his speech 'owes its existence to the employee's professional responsibilities' and is a 'product that the employer himself has commissioned or created.'" Lane acted as an employee and not as a citizen because he acted as an employee, pursuant to his official duties, when he investigated Schmitz's employment and terminated her. "That Lane testified about his official activities pursuant to a subpoena and in the litigation context," the Eleventh Circuit said, "does not bring Lane's speech within the protection of the First Amendment."

The Eleventh's Circuit's reasoning is in line with other Circuits, who have narrowly interpreted Garcetti to mean that speech arising from workplace duties is often not protected. Some Circuits have also held that Garcetti does not protect trial testimony, either. The Second Circuit is among the courts that have scaled back the rights of public employees under the First Amendment, and two years ago it issued a similar ruling in a courtroom testimony case. The Third Circuit supported the plaintiff in this kind of case, making the case ripe for Supreme Court review.

Of course, the Supreme Court is not bound by the Courts of Appeal, and it can interpret its own precedents as it sees fit. It holds unanimously that Lane could not be fired in retaliation for his speech.

First, Lane spoke as a citizen when he testified in court. "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 Court notes that the legal system relies on truthful testimony and that every citizen has a duty to tell the truth in court.

Second, the Court rejects the argument that Lane's speech was unprotected employee speech simply because he learned of the subject matter from his everyday job duties. In Garcetti, a deputy district attorney was disciplined after he wrote a memo to superiors recommending dismissal of a certain prosecution. It was his job to write that memo. Lane is not Garcetti. Clarifying what the Supreme Court wrote in Garcetti, Justice Sotomayor writes:

Garcetti said nothing about speech that simply relates to public employment or concerns information learned in the course of public employment. The Garcetti Court made explicit that I ts holding did not turn on the fact that the memo at issue “concerned the subject matter of [the prosecutor’s] employment,” because “[t]he First Amendment protects some expressions related to the speaker’s job.” In other words, the 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.

How does this affect Second Circuit precedent interpreting Garcetti? The Court of Appeals has broadly interpreted Garcetti to mean that the speech is not protected if it is "part and parcel" of the employee's ability to do his job. In Weintraub. v. Board of Education (2d Cir. 2010), a teacher lost his case after he complained about student discipline at the school. Ruling that the plaintiff engaged in employee but not citizen speech, the Second Circuit held that

We join these circuits and conclude that, under the First Amendment, speech can be “pursuant to” a public employee's official job duties even though it is not required by, or included in, the employee's job description, or in response to a request by the employer. In particular, we conclude that Weintraub's grievance was “pursuant to” his official duties because it was “part- and-parcel of his concerns” about his ability to “properly execute his duties,” as a public school teacher-namely, to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning.

Weintraub was a broad holding. Follow-up Second Circuit rulings applied Weintraub's reasoning to strike down a variety of First Amendment cases where the plaintiff spoke out on matters arising from his employment. Does Lane v. Franks open the spigot for additional public employee cases to proceed? Is Weintraub no longer good law? The next batch of public employee First Amendment cases will tell us the answer.