FAN 19.5 (First Amendment News) — Supreme Court Decides Public Employee Speech Case: 1-A Claim Prevails 9-0
The Supreme Court just handed down its opinion in Lane v. Franks. The vote was unanimous and the opinion for the Court was authored by Justice Sonia Sotomayor. The opinion can be found here. Justice Clarence Thomas filed a concurring opinion in which Justices Antonin Scalia and Samuel Alito joined.
Issues: (1) Whether the government is categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities; and (2) whether qualified immunity precludes a claim for damages in such an action.
- Held: “The Court holds that Lane’s sworn testimony outside the scope of his ordinary job duties is entitled to First Amendment protection. His testimony was speech as a citizen on a matter of public concern.” (Amy Howe)
- The Court also holds that “the individual defendant has qualified immunity from this suit because prior precedent wasn’t clear enough that you could not fire an employee for sworn testimony.” (Tom Goldstein)
→ Tejinder Singh (Goldstein & Russell) counsel for Petitioner.
Select Excerpts from Majority Opinion
First Amendment Issues
- Matters of Public Concern & Encouraging Public Employee Speech — “Speech by citizens on matters of public concern lies at the heart of the First Amendment, which “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” This remains true when speech concerns information related to or learned through public employment. After all, 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.”
- Reserved for a Future Case: “We . . . 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.” (emphasis added)
- Truth is a Defense: “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. . . . 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 testi- mony speech as a citizen and sets it apart from speech made purely in the capacity of an employee.”
- Garcetti Distinguished: “Garcetti said nothing about speech that simply relates to public employment or concerns information learned in the course of public employment. The Garcetti Court made explicit that its holding did not turn on the fact that the memo at issue “concerned the subject matter of [the prosecutor’s] employment,” because “[t]he First Amendment protects some expressions related to the speaker’s job.” In other words, the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech.”
- Key Garcetti Question: “The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.
- Value of Speech by Public Employees: “It bears emphasis that our precedents dating back to Pickering have recognized that speech 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.”
- Preventing Corruption: “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.”
Justice Thomas’ Concurrence
- Limited Application of Garcetti: Deciding this case “requires little more than a straightforward application of Garcetti. There, we held that when a public employee speaks “pursuant to” his official duties, he is not speaking “as a citizen,” and First Amendment protection is unavailable. The petitioner in this case did not speak “pursuant to” his ordinary job duties because his responsibilities did not include testifying in court proceedings, and no party has suggested that he was subpoenaed as a representative of his employer.”
- Employee Speech re Work-Related Responsibilities: “We accordingly have no occasion to 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 techni- cians, 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.”