Not a Member?  Become One Today!

Supreme Court: Speech of Testifying Public Employee Protected

By Allen Smith  6/19/2014
Copyright Image Permissions

The speech of an employee testifying in a public corruption case against a person formerly on his program’s payroll is entitled to protection under the First Amendment, the U.S. Supreme Court decided unanimously June 19, 2014. The case shows that the high court remains receptive to claims of retaliation, as the employee alleged he subsequently was fired in retaliation for his testifying.

Corruption Scandal

When Edward Lane became director of community intensive training for youth with Central Alabama Community College, the program faced significant financial difficulties.

As a result, he audited the program’s expenses, and discovered that Suzanne Schmitz, an Alabama state representative on the program’s payroll, had not been reporting to work. He discussed this with her, and then shared his finding with the community college’s president and its attorney. They warned him that firing her could have negative repercussions for him and the community college.

After more conversations with her proved to be in vain, he fired her. Schmitz told another program employee she would get Lane back for the termination.

Her termination drew the attention of the Federal Bureau of Investigation, which initiated an investigation into her employment. In November 2006, Lane testified before a federal grand jury about his reasons for firing her. In January 2008, the grand jury indicted her on four counts of mail fraud and four counts of theft concerning a program receiving federal funds. The indictment alleged she had collected $177,251 in federal funds even though she performed virtually no work and rarely appeared for work.

Her trial began in August 2008. Lane testified, under subpoena, about the events leading to her termination. The jury failed to reach a verdict.

But six months later, federal prosecutors retried her and he testified again. This time, she was convicted on three counts of mail fraud and four counts of theft, sentenced to 30 months in prison and ordered to pay $177,251.

In November 2008, Lane started reporting to Steve Franks, who had become the community college’s president in January 2008. To cut costs, in January 2009, Franks terminated 29 employees in Lane’s program, including Lane, but rescinded all but two of the terminations—those of Lane and one other employee.

In September 2009, the community college eliminated what had been Lane’s program. Franks then retired and Susan Burrow became acting president of the community college.

Lane sued Franks in his individual and official capacities, arguing that Franks had violated the First Amendment by firing him in retaliation for his testimony against Schmitz.

The district court ruled for Franks, determining that Lane’s speech could “still be considered as part of his official job duties and not made as a citizen on a matter of public concern,” and thus not protected by the First Amendment.

The 11th Circuit affirmed, deciding “Lane spoke as an employee and not as a citizen because he was acting pursuant to his official duties” when he took action against Schmitz.

Lower Courts Reversed

Writing for the majority, Justice Sonia Sotomayor reversed. She noted that whether the employee’s interest or the government’s should prevail where the government seeks to curtail the speech of its employees requires balancing the interests of public employees as citizens speaking on matters of public concern with the state as an employer promoting the efficiency of the public services it performs through its employees. In the case articulating this test (Pickering v. Board of Ed. Of Township High School Dist. 205, Will Cty., 391 U.S. 563 (1968)), the Supreme Court held that a teacher’s letter to the editor of a local newspaper concerning a school budget constituted speech on a matter of public concern.

The court must first determine whether an employee spoke as a citizen on a matter of public concern. If the answer is yes, the question then becomes whether the government entity had an adequate justification for treating the employee differently from any other member of the general public. In the case articulating this test (Garcetti v. Ceballos, 547 U.S. 410 (2006)), the Supreme Court found that an internal memorandum prepared by a prosecutor in the course of his ordinary job responsibilities constituted unprotected employee speech.

In this case, the court decided that the First Amendment protects a public employee who provides truthful sworn testimony, compelled by subpoena, outside the scope of his or her ordinary job responsibilities. First of all, it is speech as a citizen (rather than as an employee) on a matter of public concern, even when the testimony relates to public employment or concerns information learned during that employment, the court ruled.

“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 court stated.

Lane’s testimony also was on a matter of public concern, the court decided. “The content of Lane’s testimony—corruption in a public program and misuse of state funds—obviously involves a matter of significant public concern,” the court said. “And the form and context of the speech—sworn testimony in a judicial proceeding—fortify that conclusion.”

The government presented no interest tipping the balance in its favor, so Lane’s speech is entitled to protection under the First Amendment.

But the claim against Franks in his individual capacity should be dismissed because of qualified immunity; Lane’s constitutional right was not clearly established at the time of the challenged conduct. The Supreme Court sent the case back to lower courts to consider the claim brought against Burrow in her official capacity for that part of the case that originally had been brought against Franks in his official capacity as college president.


In a concurring decision, Justice Clarence Thomas, joined by Justices Antonin Scalia and Samuel Alito Jr., noted that when a public employee speaks according to his or her official duties, the employee is not speaking as a citizen, and First Amendment protection is unavailable. Here, Lane did not speak as part of his ordinary job duties, because his responsibilities did not include testifying in court proceedings.

The court was right, therefore, to 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. … 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,” Thomas wrote. “Others may be called to testify in the context of particular litigation as the designated representatives of their employers,” such as HR.

‘Green Light’

Michael Droke, an attorney with Dorsey & Whitney in Seattle and Palo Alto, Calif., noted that the court’s holding directly affects public employees, not private-sector employees, as the First Amendment applies only to state actors.

Stephen Kohn, executive director of the National Whistleblowers Center, said, “Given the widespread use of grand jury proceedings to investigate securities, banking and tax fraud, today’s ruling will have widespread impact. It will have a direct and major impact on the willingness of public employees to expose corruption in government.”

He added, “This ruling gives a green light to all public employees who have information concerning official corruption and fraud, and want to expose those crimes.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

Copyright Image Permissions


Swipe for more!