On Monday, April 28, the Court will hear oral arguments in Lane v. Franks on the First Amendment protections for a public employee who testifies in court. There are two respondents the previous and current presidents of the college in question and they disagree with each other on the First Amendment question. The Solicitor General will participate in the oral argument.

Background

Central to the resolution of Lane v. Franks is the reach of Garcetti v. Ceballos, the Courts latest pronouncement on the First Amendment rights of public employees. Since Pickering v. Board of Education in 1968, the First Amendment has protected public employees from adverse employment actions when they are speaking as a citizen on a matter of public concern. In Garcetti, the closely divided Court held that, when public employees make statements pursuant to their official duties, such speech is not protected by the First Amendment. The employee in Garcetti was a deputy district attorney in Los Angeles who investigated a law enforcement officers affidavit in support of a search warrant and concluded it was false. The prosecutor wrote a memo recommending the case be dismissed; his supervisors not only vehemently disagreed but also allegedly retaliated against him. In an opinion by Justice Kennedy, the Court reasoned that when an employee is simply performing his or her job duties, there is no relevant analogue to speech by citizens who are not government employees.

In the eight years since Garcetti, courts have varied in their application of the doctrine. For some courts, Garcetti has seemed a broad mandate insulating public employer actions from First Amendment challenge by any employee. Other courts, however, have limited and distinguished Garcetti. The Court has denied certiorari in several closely watched cases, such as Jackler v. Byrne and Bowie v. Maddox, which both involved police officers and reached differing conclusions, arguably producing a circuit split.

The Eleventh Circuits opinion in Lane v. Franks is decidedly in the expansive mandate camp. Indeed, the opinion is a per curiam one, decided without oral argument and intended as non-precedential. In affirming the district judges grant of summary judgment to the public employer, the Eleventh Circuit described Garcetti as further restricting public employees protected speech. Relying on its own circuit precedent, including pre-Garcetti cases, the court of appeals 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 employees professional responsibilities and is a product that the employer itself has commissioned or created. This broad category included subpoenaed testimony. However, the Eleventh Circuit recognized, albeit in a footnote, that both the Seventh Circuit and Third Circuit had decided this issue differently, citing Morales v. Jones and Reilly v. City of Atlantic City.

Even as related by the Eleventh Circuit, however, the circumstances giving rise to Lane v. Franks paint a troubling picture of retaliation for a public employees failure to cooperate with political corruption and his resulting testimony. In 2006, soon after Edward Lane became the director of a program for at-risk youth at Central Alabama Community College (CACC), he looked at the programs finances. He discovered that an Alabama state representative, Suzanne Schmitz, was listed on the payroll. He also discovered she had never performed any work for the program. Edward Lane raised his concerns about Schmitz, but he was warned by the CACC president (a predecessor to respondent Steve Franks) and CACCs lawyer that terminating Schmitzs employment could have negative repercussions for both Lane and CACC. Nevertheless, Lane did terminate Suzanne Schmitz after she refused to report to work. Schmitz told another program employee that she planned to get [Lane] back for terminating her and that, if he requested money from the state legislature, she would tell him youre fired. The FBI began investigating Suzanne Schmitz and contacted Edward Lane for information. Lane testified before a federal grand jury and pursuant to a subpoena he testified at Schmitzs two federal criminal trials for mail fraud and fraud involving a program receiving federal funds. Schmitz was ultimately convicted, although a divided Eleventh Circuit panel reversed her convictions on some of the counts.

Lane was terminated after his testimony at the first criminal trial. In January 2009, Franks who had become president of CACC terminated the twenty-nine employees of the at-risk youth program, but soon rescinded the termination of all the employees except Lane and one other. Whether Franks terminated Lane due to Lanes testimony against Schmitz remains unresolved; an essential issue in the Supreme Court is whether it needs to be.

Arguments and analysis

The primary question before the Court is whether the Eleventh Circuit was correct in holding that Lanes testimony was categorically unprotected by the First Amendment, although there is also a secondary issue of whether Franks is entitled to qualified immunity from an award for damages.

There is little support for a straightforward affirmance of the Eleventh Circuit opinion on the First Amendment issue. Lane is not the only one to argue that the Eleventh Circuits categorical exclusion of First Amendment protection for subpoenaed testimony is incorrect: the Solicitor General, representing the United States as an amicus, agrees with him. More unusually, the Alabama attorney general Alabama representing respondent Susan Burrow, the current acting president of CACC also agrees that the Eleventh Circuit was incorrect to conclude that Lanes testimony was categorically unprotected by the First Amendment. Additionally, almost all of the amicus briefs agree with this position, including one from the National Association of Police Organizations, which is perhaps not surprising given that so many of the similar cases involve persons employed in law enforcement.

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Argument preview: First Amendment protections for public employees subpoenaed testimony