In a landmark First Amendment case, the Supreme Court today significantly expanded the free speech protections for public employees. The Court limited the application of Garcetti v. Ceballos which held that statements made in the course of official duties are not protected. The Court declared that Edward Lane was acting as a citizen, and not as part of his normal job duties, when he testified under subpoena in the corruption trial of a state legislator.
Edward Lane worked as the Director of Community Intensive Training for Youth (CITY), a program of Central Alabama Community College (CACC). Lane discovered that Suzanne Schmitz, an Alabama State Representative on CITY’s payroll, had not been reporting to her CITY office. Schmitz wanted to continue in her no-show job. Lane reported his finding to CACC’s president and attorney. They warned him that firing Schmitz could have negative repercussions for him and CACC. Lane nevertheless did fire Schmitz. Schmitz then threatened to block state funding for CITY.
In 2006, Lane testified to a federal grand jury about why he fired Schmitz. In 2008, the grand jury indicted Schmitz on charges of mail fraud and theft of federal funds. In 2008 and 2009, Lane testified under subpoena in two trials. The second trial resulted in a guilty verdict. Meanwhile, Steven Franks became president of CACC. He and Lane agreed that layoffs were necessary due to funding cuts. In 2009, Franks laid off 29 CITY employees, including Lane. Shortly thereafter, he recalled 27 of them, but not Lane.
Lane sued Franks and CACC claiming that he was fired because of his testimony against Schmitz. The district court dismissed the case, saying in part that Lane’s testimony was part of his official duties. As such, it is not protected under the Garcetti v. Ceballos, 547 U.S. 410 (2006). The Eleventh Circuit affirmed, again relying on Garcetti.
The Garcetti decision was controversial when it was issued. Richard Ceballos was a deputy district attorney for the Los Angeles County District Attorney’s Office. Gil Garcetti was then the district attorney. Ceballos issued a memo recommending dismissal of a criminal case because a deputy sheriff made a false affidavit to get a search warrant. Ceballos was called by the defense to challenge that affidavit. Ceballos then claimed that he was reassigned, transferred and denied promotion on account of his disclosures. The Ninth Circuit held that Ceballos was protected by the First Amendment and Garcetti appealed. While Sandra Day O’Connor was a Supreme Court Justice, the Supreme Court could not issue a final decision on Garcetti’s appeal. In 2006 however, O’Connor retired. Justice Alito took her place. The Supreme Court decided to reargue the case so that Alito could participate. The final decision was 5-4 in favor of Garcetti and against Ceballos. Justice Kennedy, writing for the majority, said that Ceballos’ internal disclosures were part of his duties as an assistant district attorney and therefore should not be protected.
I have long criticized the Garcetti decision, but I also noted how its impact should not be as significant as others feared. How many workers really have blowing the whistle on misconduct as part of their job duties?
In Lane’s case, the unanimous Supreme Court held that testifying under subpoena invokes the employee’s status as a citizen and the testimony is protected if it touches on matters of public concern. The majority opinion makes a number of sweeping statements that should be obvious from the text of the First Amendment, but are nevertheless helpful and refreshing:
- Speech by citizens on matters of public concern lies at the heart of the First Amendment[.]
- The First Amendment “assure[s] unfettered interchange of ideas for the bringing about of political and social changes desired by the people[.]”
- Public employees do not renounce their citizenship when they accept employment, and this Court has cautioned time and again that public employers may not condition employment on the relinquishment of constitutional rights.
- There is considerable value, moreover, in encouraging, rather than inhibiting, speech by public employees.
- Government employees are often in the best position to know what ails the agencies for which they work.
- The interest at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it.
- [S]peech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment.
- The importance of public employee speech is especially evident in the context of this case: a public corruption scandal.
- 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.
- 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.
- When the person testifying is a public employee, he may bear separate obligations to his employer—for example, an obligation not to show up to court dressed in an unprofessional manner.But any such obligations as an employee are distinct and independent from the obligation, as a citizen, to speak the truth. That independent obligation renders sworn testimony speech as a citizen and sets it apart from speech made purely in the capacity of an employee.
- The law requires “balanc[ing] . . . 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.”
Applying these principles to Lane’s case, the majority opinion notes that “Lane’s ordinary job responsibilities did not include testifying in court proceedings.” In footnote 4, the majority also states, “We accordingly need not address in this case whether truthful sworn testimony would constitute citizen speech under Garcetti when given as part of a public employee’s ordinary job duties, and express no opinion on the matter today.” This is an issue that was before the Court in Garcetti, and one must wonder how much remains of the holding in Garcetti.
The majority also noted how the Unites States Solicitor General urged the Court to protect witnesses because the government needs them to testify in over a thousand public corruption cases each year. A denial of protection “would place public employees whowitness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.”
The majority also recapped the rule on what is a “matter of public concern.” Speech involves matters of public concern “when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community,’ or when it ‘is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” The inquiry turns on the “content, form, and context” of the speech. Also, “a stronger showing [of government interests] may be necessary if the employee’s speech more substantially involve[s] matters of public concern.”
The majority recognized that its holding today represents a significant change in the law. For this reason, it held that Franks himself would not be personally liable. He is entitled to “qualified immunity” because before today’s decision, he could not have known for sure how the courts would rule. The Eleventh Circuit, in particular, had not found public officials liable in circumstances such as Franks’.
Three justices wrote a short concurring opinion to emphasize that the decision in Lane’s case does not apply to all public employees, yet. “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. See Fed. Rule Civ. Proc. 30(b)(6). The Court properly leaves the constitutional questions raised by these scenarios for another day.” Even the three concurring justices do not see Garcetti as having answered this question. We can look forward to the day when another case will address the free speech rights of a law enforcement official who testifies as part of his or her duties. That case could set a new watermark for the scope of our First Amendment protections. The justices selected by a future president will make that decision. Elections matter.
All nine justices focused on how Ceballos submitted an internal memo about the deputy sheriff’s falsified affidavit. “The sworn testimony in this case is far removed from the speech at issue in Garcetti—an internal memorandum prepared by a deputy district attorney for his supervisors recommending dismissal of a particular prosecution[,]” the majority explained. They ignored how Ceballos also testified in court about that falsification. I must wonder how the justices would rule today on the actual facts of Ceballos’ case.
As before, First Amendment advocates must weigh a variety of factors in assessing the likely outcome of a public employee retaliation case. How important is the disclosure the employee is making? In Lane, the prosecution of a corrupt public official was important enough. In Garcetti, testifying for the defense about a dishonest deputy sheriff was not. How close is the disclosure to the employee’s official job duties? An assistant prosecuting attorney’s duties are too close to the disclosures of falsification. A college director’s duties are far enough away from the courtroom to justify protection. Employees who face retaliation for their disclosures still face a risk of losing, but today’s decision has pushed the balance closer to the side of protection.
The case is Lane v. Franks, No. 13–483. Congratulations to Lane’s attorneys, including Tejinder Singh of Goldstein & Russell here in Washington, and John Saxon of Birmingham, Alabama.
By Richard Renner
By Richard Renner