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Workplace Issues: Free speech for workers, protection from discipline

Lindy Korn

Lindy Korn

The U.S. Supreme Court has ruled that public employees who testify truthfully in court outside the scope of their job responsibilities cannot be disciplined under the First Amendment. This case represents the first time since 2006 that the court has addressed issues of free speech of public employees.

The case is Lane v. Frank, et al. (No. 13-483, decided June 19th, 2014). The plaintiff, Lane, oversaw a statewide training program for young people, handling day-to-day operations and looking after the program’s finances. When Lane audited the program’s finances, he discovered that an employee, Schmitz, was on the payroll but not doing any work.

Lane fired Schmitz, who was arrested for theft and mail fraud in connection with her no-show job. After Lane testified against Schmitz in the grand jury and at trial, she was convicted. Twenty nine people from Lane’s program were then fired, but 27 of the 29 were brought back. Lane remained unemployed. His lawsuit alleges he was fired in violation of the First Amendment.

In Garcetti v. Ceballos (2006), the Supreme Court distinguished between citizen (protected) speech and employee (unprotected) speech, holding that the First Amendment does not protect public employees who testify pursuant to their official duties. Although Kane claims that he was fired because he testified in court, the Eleventh Circuit dismissed the case, reasoning, “even if an employee was not required to make speech as a part of his official duties, he enjoys no First Amendment protection if his speech owes its existence to the employee’s professional responsibilities and is a product that the employer himself has commissioned or created.”

Lane acted as an employee and not as a citizen when he investigated Schmitz’s employment and terminated her. “That Lane testified about his official activities pursuant to a subpoena and in the litigation context, the Eleventh Circuit said, “does not bring Lane’s speech within the protection of the first Amendment.” The Eleventh Circuit’s reasoning is in line with the Second Circuit and others, who have narrowly interpreted Garcetti to mean that speech arising from the workplace duties is often not protected.

The Supreme Court held unanimously that Lane could not be fired in retaliation for his speech. First, Lane spoke as a citizen when he testified in court. “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.” The court noted that the legal system relies on truthful testimony and that every citizen has a duty to tell the truth in court.

The court reminds us that 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. Indeed, 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.

Justice Sonia Sotomayor delivered the opinion of the court, which held: “Almost 50 years ago, this court declared that citizens do not surrender their first Amendment rights by accepting public employment. Rather, the First Amendment protection of a public employee’s speech depends on a careful balance, ‘between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the state as an employer, in promoting the efficiency of the public service it performs through its employees,’” Pickering v. Board of Ed. Of Township High School Dist. 205, Will Cty., 391U.S. 563, 568 (1968).

In Pickering, the court struck a balance in favor of the public employee, extending First Amendment protection to a teacher who was fired after writing a letter to the editor of a local newspaper criticizing the school board that employed him. Today, we consider whether the First Amendment similarly protects an employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities. We hold it does.

It will be interesting to watch the post-Lane v. Frank decisions from the Second Circuit. We know that whether speech is a matter of public concern turns on the “content, form and context of the speech,” Connick v. Myers, 461 U.S. 138, 148. Does Lane v. Frank open the door for additional public employee cases to proceed? Future First Amendment cases will guide us.

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at or (716) 856-KORN (5676).