It has long been U.S. Supreme Court policy that government employees do not shed their First Amendment rights on account of their employment. In fact, in a 1968 case, the Supreme Court made clear that society has a particular interest in encouraging open expression by individuals who may be particularly well positioned to give informed opinions on matters of public concern. Teachers, for example, should be able to speak freely about the school boards in their district without fear of being fired.
But a 2006 ruling that upheld the firing of a government lawyer left many wondering whether this First Amendment protection had been curtailed, at least where the speech has something to do with an employee’s job. These fears proved unfounded, however, at least in the context of a decision handed down on Thursday. In that case, a unanimous Supreme Court held that an employee should not have been fired for his subpoenaed testimony during the criminal trial of a former Alabama state representative.
“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,” Justice Sonia Sotomayor wrote for the court.
Plaintiff Edward Lane was the director of an Alabama program for at-risk youth, run through Central Alabama Community College. He learned that Suzanne Schmitz, then an Alabama state representative, was an employee in his program and on the payroll, but that she was not reporting to the office. After several warnings, he fired her, and Schmitz later told another employee that she would “get [Lane] back” and that if Lane ever requested money from the state legislature, she would tell him “[y]ou’re fired.”
Schmitz was later indicted for fraud for having collected $177,251.82 in federal funds even though she performed “virtually no services,” “generated virtually no work product.” During the trial, Lane was compelled to testify against her, as her former supervisor at the Community Intensive Training for Youth. (Schmitz was ultimately sentenced to 30 months in prison on the charges.) Months later, Lane was terminated after the program experienced budget shortfalls.
Lane alleged that the firing was retaliation for his testimony against Schmitz. But two lower courts held that Lane was not protected by the First Amendment under 2006 Supreme Court precedent, because the testimony was related to his work.
In the 2006 case, Garcetti v. Ceballos, the Supreme Court upheld the firing of an assistant district attorney who had concluded in a legal memo that a police officer’s sworn statement was false. Richard Ceballos had argued that his speech was protected as frank communication on a matter of public concern — official misconduct. But the court held that because writing the memo was a part of his official job duties, he was not acting as a “citizen” but as an employee, and therefore not protected.
The Supreme Court distinguished this new case from Garcetti because Schmitz was not testifying as a part of his job and was instead acting as a “citizen,” even though he was asked to talk about information related to his job. “[T]he 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,” Sotomayor wrote.
There are reasons that subpoenaed testimony could have been the basis for discipline, the court qualified. If there were evidence that Lane lied on the stand, for example, or disclosed confidential information, that might impinge on his duties. But they said in this case there is no “government interest that tips the balance in their favor.”
Unfortunately for Lane, Sotomayor’s opinion held that Lane’s boss is nonetheless immune from suit, because he could not have had proper notice that his behavior was a First Amendment violation. But for future plaintiffs, this ruling leaves a little more breathing room after the 2006 Garcetti decision worried many court-watchers. Many have been concerned, in particular, about whether Garcetti would allow retaliation against academic speech for scholars at public universities, and that question was not answered Thursday. The opinion makes clear, however, that employee should not be put in the “impossible position,” she said, of having to choose “between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.”