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U.S. Supreme Court

Chemerinsky: What free speech rights do government employees have?

Posted Apr 28, 2014 8:30 AM CDT
By Erwin Chemerinsky

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Erwin Chemerinsky.

Can a government employee be fired for truthful testimony given after being subpoenaed? The answer to this question seems obvious: Such a firing of an employee for his or her speech in court would violate the First Amendment. But that is the issue in Lane v. Franks, which is being argued in the Supreme Court on Monday. The case will provide the court an important occasion to clarify the First Amendment protections for the speech of government employees in light of its restrictive decision in the 2006 case, Garcetti v. Ceballos.

Edward Lane was the director of a program for at-risk youth at Central Alabama Community College (CACC). Soon after assuming this position in 2006, he saw that Suzanne Schmitz, an Alabama state representative, was on the payroll for his program even though she never did any work for it. When Lane raised concerns about this, he was told by CACC's president and by its lawyer that terminating Schmitz could have serious repercussions for Lane, the program, and CACC. Despite this warning, Lane terminated Schmitz from the payroll.

The FBI was investigating Schmitz, and Lane was called as a witness to testify before the grand jury. Lane was subpoenaed and testified at Schmitz's two criminal trials for mail fraud and for fraud involving a program receiving federal funds. Schmitz was convicted.

After testifying at the first trial against Schmitz, Lane was fired by Steve Franks, the president of CACC. Actually, Franks fired all 29 employees of the at-risk youth program, but soon after he rescinded the firing of all of the employees except Lane and one other.

Lane sued claiming that his firing violated the First Amendment. He alleged that he was terminated from employment for truthful speech given pursuant to a subpoena. The federal district court granted summary judgment against Lane and the 11th U.S. Circuit Court of Appeals, in a per curium unpublished opinion, affirmed.

The appeals court relied on Garcetti v. Ceballos. Richard Ceballos, a supervising district attorney in Los Angeles County, concluded that a witness in one of his cases, a deputy sheriff, was not telling the truth. He wrote a memo to this effect and felt that he was required by the Constitution to inform the defense of this. As a result of this speech, Ceballos alleged that his employers retaliated against him, including transferring him to a less desirable position and denying him a promotion.

The issue before the Supreme Court was whether Ceballos' speech was protected by the First Amendment. Although the Supreme Court long has held that there is constitutional protection for the speech of government employees, it ruled against Ceballos. The court drew a distinction between speech "as a citizen" and "as a public employee"; only the former is protected by the First Amendment. Justice Anthony M. Kennedy, writing for the majority in a 5-4 decision, stated: "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." The court held that the First Amendment provides no protection for the speech of government employees on the job in the scope of their duties.

This is a very troubling decision because it means that there is no First Amendment protection for whistleblowers who suffer adverse employment consequences after informing supervisors of wrongdoing in their workplace. Ironically, Ceballos would have had more First Amendment protection if he had gone to the Los Angeles Times than by writing a memo to his supervisor.

In the eight years since the court's decision in Garcetti v. Ceballos lower courts have struggled to apply it and especially to decide what is speech on the job in the scope of employment. Lane v. Franks is the first time that the Supreme Court has returned to the issue, and it does so in a narrow context: Can a government employee be fired for speech in court pursuant to a subpoena?

Surprisingly, the 11th Circuit applied Garcetti v. Ceballos to conclude that Lane had no constitutional protection for his testimony. The 11th Circuit ruled that an employee enjoys no First Amendment protection when the speech was made pursuant to his official duties, including "if his speech owes its existence to the employee's professional responsibilities and is a product that 'the employer itself has commissioned or created.'"

This can't be right. Otherwise, a subpoenaed government employee in Lane's situation faces three choices: refuse to testify and face contempt, testify falsely and commit perjury, or testify truthfully and get fired. It is for this reason that other circuits have distinguished Garcetti v. Ceballos and come to the opposite conclusion from the 11th Circuit.

Lane v. Franks gives the Supreme Court the opportunity to narrow its holding in Garcetti v. Ceballos and to provide more protection for the speech of government employees. There is, though, a second issue in the case: whether qualified immunity precludes a claim for damages in such an action. Government officers sued for money damages generally can be held liable only if they violate clearly established law that every reasonable officer would know. Franks argues that even if Lane's firing violates the First Amendment, it cannot be said that it met this standard for liability.

In recent years, the Supreme Court has expanded the scope of qualified immunity and has provided more protection from liability for government employees. In fact, under its 2009 decision in Pearson v. Callahan, the court even could find Franks protected by qualified immunity because of the absence of clearly established law, without reaching the issue of whether Lane's firing violates the First Amendment.

But sometimes facts like these can make good law. This is the occasion for the Supreme Court to say the obvious: Firing a government employee for giving truth testimony after being subpoenaed violates the First Amendment, and every government officer surely should know this.

Erwin Chemerinsky, Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.

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