U.S. Supreme Court Holds Subpoenaed Testimony of Public Employee is Afforded First Amendment Protection

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U.S. Supreme Court Holds Subpoenaed Testimony of Public Employee is Afforded First Amendment Protection

June 20, 2014

Yesterday the U. S. Supreme Court issued a decision in Lane v. Franks to address the issue of whether “public employees may be fired—or suffer other adverse employment consequences—for providing truthful subpoenaed testimony outside the course of their ordinary job responsibilities.” Factually, the dispute arose from the termination of the Director of a state-funded program at a community college. The Director, Lane, discovered that a State Representative was on the payroll but was not reporting for work. He confronted the State Representative and reported the issue to his bosses, including defendant Franks. Lane ultimately terminated the State Representative who was subsequently tried and convicted of mail fraud and theft. Lane provided subpoenaed testimony against the State Representative both before the federal grand jury and in the jury trial against her. Franks subsequently terminated Lane’s employment, and Lane sued Franks and the community college under 42 USC Section 1983, specifically seeking relief against Franks in his official and individual capacities for retaliating against Lane for exercising his protected right under the First Amendment to speak on matters of public concern.

From a legal standpoint, the dispute arose under limitations on the scope of a public employee’s free speech rights established in the court’s 2006 decision Garcetti v. Ceballos, 547 US 410. That decision held that an employee who speaks pursuant to his official duties is not speaking on a matter of public concern so as to confer constitutional protections upon the speech. The Defendants had argued, and the lower court concurred, that because Lane’s testimony pertained to information gained as a result of the performance of his official duties, it was a part of those duties and was not made in his capacity as a citizen speaking on a matter of public concern. The Supreme Court unanimously rejected this argument. First, the Court held that truthful testimony under oath by an employee is speech as a private citizen, even if the testimony pertains to that person’s employment or information related to employment. Secondly, the Court determined that Lane’s testimony was speech on a matter of public concern—public corruption and misuse of state funds. Finally, the Court applied the Pickering balance test and found no governmental interest in favor of restricting the speech at issue: “There is no evidence, for example, that Lane’s testimony…was false or erroneous or that Lane unnecessarily disclosed any sensitive, confidential, or privileged information while testifying.”

Despite finding that Lane’s speech was entitled to First Amendment protection, the Court dismissed his Section 1983 retaliation claim against Franks in his individual capacity under the doctrine of qualified immunity. Because the law was unsettled and Franks could have reasonably believed that a government employer could fire an employee for such testimony, the Court found he was entitled to qualified immunity. Given the Court’s unanimous holding in this case, however, public officials are now on notice that a public employee who provides truthful sworn testimony, compelled by a subpoena, outside the scope of his ordinary job responsibilities, is entitled to First Amendment protection.

The full text of the Court’s decision can be found at http://www.supremecourt.gov/opinions/13pdf/13-483_9o6b.pdf. If you have any questions about Section 1983 litigation, protected speech or retaliation claims, please contact your Clark Baird Smith LLP attorney.

The CBS LLP Legal Advisory is prepared for general information purposes only. The summaries of recent court opinions and other legal developments are not necessarily inclusive of all the recent legal authority of which you should be aware when making your legal decisions. Thus, while every effort has been made to ensure accuracy, you should not act on the information contained herein without seeking more specific legal advice on the application and interpretation of these developments to any particular situation.
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