SCOTUS Resolves Circuit Split Regarding Free Speech Rights of Public Employees
Last month, the U.S. Supreme Court held that the First Amendment protects public employees who give truthful testimony under subpoena, overruling an erroneous Eleventh Circuit opinion that held to the contrary and created a split among the federal circuits. Lane v. Franks, 134 S.Ct. 2369 (2014).
At issue was whether the employee’s truthful testimony qualified as constitutionally-protected free speech on a “matter of public concern” or unprotected speech within the scope of employment. The First Amendment of the U.S. Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.”The Supreme Court has stated that “public employees do not renounce their citizenship when they accept employment” and that “employers may not condition employment on the relinquishment of constitutional rights.” However, not all speech of a public employee qualifies as protected speech. In determining whether a public employee’s speech is protected, courts must engage in a two-step inquiry. “The first step requires determining whether the employee spoke as a citizen on a matter of public concern.” If the answer is yes, “[t]he question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.”
In Lane, Central Alabama Community College (“CACC”) hired Edward Lane as a supervisor for a statewide program benefiting underprivileged youths. The program was facing financial difficulties, so Lane conducted an audit of its expenses. The audit revealed that Suzanne Schmitz, an Alabama State Representative, was on the program’s payroll, despite not being involved with the program. Lane fired Schmitz after an unsuccessful attempt at resolving the situation amicably. The termination drew the attention of the FBI, which subsequently brought criminal charges against Schmitz. Lane was subpoenaed to testify regarding the events which led to Schmitz’s termination. Ultimately, Schmitz was convicted and, shortly thereafter, Lane was fired by Steve Franks, the president of CACC.
Lane sued Franks, alleging that Franks had violated his First Amendment rights by firing him in retaliation for testifying against Schmitz. The district court granted Franks’ motion for summary judgment and the Eleventh Circuit Court of Appeals affirmed, reasoning that Frank’s testimony fell within the scope of his employment. “[E]ven if an employee is not required to make the speech as part of his official duties,” the Eleventh Circuit observed,“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.” In other words, the speech was not protected because its content derived from Lane’s employment with CACC.
The Supreme Court granted certiorari to resolve a split between the federal circuits. The Court found that Lane’s truthful testimony at Schmitz’s trial constituted speech as a citizen, not speech within the scope of his employment. “Anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth.” Lane, 134 S.Ct. at 2379.Further, the Court found that Lane’s speech—truthful testimony about public corruption and misuse of state funds—touched upon a matter of public concern. The Court’s opinion therefore resolved that, going forward, public employees do not have to choose between keeping their jobs and fulfilling their civic and legal duties by testifying truthfully in court, even where their testimony concerns job-related matters.