Lane v. Franks: The First Amendment Protects Public Employees Who Testify in Court

July 21, 2014

Public employees should not have to choose between keeping their jobs and testifying truthfully under oath. In June, the Supreme Court made this obvious proposition the law of the land in Lane v. Franks, ___ U.S. ___, 134 S.Ct. 2369 (2014). In Lane, the plaintiff was the Director for Community Intensive Training for Youth (“CITY”), a program operated by Central Alabama Community College (i.e., the State of Alabama). During the course of his employment, Lane discovered that a state representative was on the CITY program payroll, but that she performed no work. When he first brought his concerns to the attention of his superiors, they warned him that firing her would create negative repercussions for him. Nonetheless, plaintiff fired the state representative. Lane then provided information to the FBI for its investigation and testified under subpoena before a federal grand jury and at the federal criminal trial. After the representative’s conviction, the College president, Franks, fired Lane.

Lane sued, claiming that his termination was in retaliation for his exercise of speech protected under the First Amendment. The trial judge in the district court saw no problem with punishing public employees who testify truthfully and granted the College’s and Lane’s motion for summary judgment. The Eleventh Circuit Court of Appeals followed and upheld the lower court’s decision based on an overly broad interpretation of Garcetti v. Ceballos, 547 U.S. 410 (2006). The Eleventh Circuit decided that Lane’s testimony was offered within the scope of his employment and was, thus, not protected. In other words, the Eleventh Circuit concluded that the testimony was not speech of a citizen on a matter of public concern, but was speech of an employee acting pursuant to his official duties. This is not the first time the Eleventh Circuit wrongly expended Garcetti to justify an absurd result. In Green v. Barrett, 226 Fed. Appx. 883 (11th Cir.), cert denied, 128 S.Ct. 439 (2007), the Court held that the Fulton County Sheriff was free to terminate her chief jailer because she testified truthfully about dangerous conditions within the County Jail. No wonder Mr. Franks felt free to retaliate against Lane.

Thankfully, the Supreme Court granted certiorari this time to bring the Eleventh Circuit in line with every other circuit court on this important issue. The Supreme Court reversed and categorically rejected the Eleventh Circuit’s decision. In reaching its holding, the Supreme Court analyzed the principles in Pickering v. Bd. of Educ. of Township High School Dist. 205, Will Cty, 391 U.S. 563 (1968) and Garcetti, 547 U.S. 410. From Garcetti, the Supreme Court set forth a two part test to determine when an employee’s speech is entitled to First Amendment protection. The first question is whether the speech — plaintiff’s testimony at the state representative’s trials — is speech as a citizen on a matter of public concern or pursuant to the employee’s job duties. According to the high court, Lane’s testimony, at trial pursuant to a subpoena, was not within the scope of his job duties. “Anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth.” Lane, 134 S.Ct. at 2379.

The second question was whether Lane’s speech was a matter of public concern. The Court held that the content of plaintiff’s testimony — corruption in a public program and misuse of state funds — was undoubtedly a matter of public concern. A la Pickering, the Court balanced the interests of the public employee commenting on matters of public concern as a citizen and the interest of the State, as an employer, in promoting the efficiency of public services it performs through its employees. The interests fell decidedly on the side of providing truthful testimony and outing public corruption. Lane’s truthful sworn testimony, compelled by subpoena, was considered citizen speech protected by the First Amendment.