Monday, January 20, 2014
Thanks to Ross Runkel at RossRunkel.com for bringing to my attention that the U.S. Supreme Court this past Friday accepted cert. in an interesting public employee free speech case: Lane v. Central Alabama Community College (11th Cir 07/24/2013) (unpublished).
In Lane, the public employee claimed that he was fired for testifying truthfully against a state legislator after he had been subpoenaed. As Ross points out:
It raises an issue left undecided in Garcetti v. Ceballos, 547 US 410 (2006). Garcetti is famous for holding that a public employee who speaks or writes as part of that employee's job duties enjoys no 1st amendment protection. The employer can fire that employee for speaking or writing. The reasoning is that the employee was not speaking or writing as a citizen.
The issue in Lane v. Franks is whether a public employer is free to fire an employee for giving truthful subpoenaed testimony.
Lane, as part of his community college job, uncovered evidence that a legislator was engaged in some corrupt activities. Later, Lane testified under subpoena in a federal criminal trial involving the legislator. When Lane got laid off or terminated from his job, he sued Franks, president of the college, claiming retaliation in violation of the 1st amendment.
Ross is absolutely correct that the crux of the case here is that testifying was not Lane's job duty, but the content of the testimony is all about what Lane discovered as part of his job duties. I also agree with Ross that this should be an easy case because when an employee is subpoenaed to testify in criminal court, that employee is speaking as a citizen on a matter of public concern and should have the protection of the free speech provisions of the First Amendment.
But we shall see. I thought Ceballos in the Garcetti case had clear free speech rights in working with the defense attorneys against his superiors, but I turned out to be dead wrong. The problem is that these fabricated, formalist distinctions between when a public employee acts as a "citizen" or "employee" do not lend themselves to easy definition in various contexts.