When Is Public Employee Speech Protected By the First Amendment: Lane v. Franks – The Latest from the U.S. Supreme Court

by Anshu Agarwal and Bart Miller

On June 19, 2014, the U.S. Supreme Court held unanimously that government employees are protected under the First Amendment if they provide truthful sworn testimony that is outside of their regular job responsibilities.

The case involved Edward Lane, the director of the Community Intensive Training for Youth (CITY) program operated by Central Alabama Community College (CACC), and Suzanne Schmitz, an Alabama state representative on the program’s payroll. In November 2006, CITY was struggling financially. Lane audited the program’s expenses and found Schmitz had collected over $175,000 from the program without showing up to work. After unsuccessful attempts at communicating with her and her failure to follow Lane’s direction that she participate at work as a counselor for CITY, Lane fired Schmitz.

Lane testified before a federal grand jury and in subsequent criminal cases in federal court against Schmitz about his reasons for firing her. In January 2008, the federal district court in Alabama sentenced Schmitz to 30 months in prison and ordered her to repay the sum of money she had received from CITY for the time she was a “no-show” at work.

In the meantime, CITY continued to experience financial difficulties, and then-President of CACC Steve Franks fired Lane. Lane sued Franks in federal district court in Alabama claiming that Lane’s termination was retaliation for testifying against Schmitz and, therefore, Franks violated Lane’s First Amendment rights. The district court granted summary judgment for Franks on the grounds that a reasonable government official in Franks’ position would not have had reason to believe that the First Amendment protected Lane’s testimony. The district court relied on case law holding that, when public employees make statements as part of their official duties, the employees are not speaking as citizens for First Amendment purposes.

The Eleventh Circuit court of appeals affirmed the district court on the basis that, although Lane wasn’t technically required to make the speech against Schmitz as a part of his job description, the existence of the speech itself was a result of Lane’s professional responsibility to make decisions with respect to CITY’s finances. Specifically, the court stated, “Government employers, like private employers, need a certain degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.”

Lane appealed the case to the U.S Supreme Court. The Court disagreed with the lower courts. Justice Sotomayor wrote for a unanimous court that “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 Court maintained that “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. … That is so even when the testimony relates to his public employment or concerns information learned during that employment.”

Since Lane testified solely to fulfill a court order, he testified as a citizen and was protected by the First Amendment. As long as public employees are speaking in sworn testimony outside their normal job responsibilities about concerns of public interest and the greater good, they are protected under the First Amendment. But what happens to employees who are required to testify as part of their official duties? Justice Thomas, joined by Justices Scalia and Alito in a concurring opinion, made clear that the Court’s holding as to Lane’s unique facts does not automatically extend to public employees, such as police officers, crime scene technicians, and laboratory analysts, who are “testifying . . . [as] a routine and critical part of their employment duties.”