In Lane v. Franks (June 19, 2014) No. 13-483, the Supreme Court of the United States provided further guidance regarding two important issues for government employees who blow the whistle. First, the Court explained that speech that merely concerns the employee’s job duties, as opposed to being part of the employee’s job duties, is protected under the First Amendment. Second, the Court clarified what a government employee must show in order to survive a motion to dismiss based on qualified immunity. (The qualified immunity issue will be discussed in a separate blog post that will follow shortly.)
The plaintiff in Lane had been the director of a government program in Alabama. He terminated an employee named Suzanne Schmitz, who was also a state representative, because she was not showing up for work. He was then subpoenaed to testify about this termination before a federal grand jury and at Ms. Schmitz’s two criminal trials. The plaintiff was subsequently terminated as part of a layoff of 29 employees.
The plaintiff then sued under 42 U.S.C. §1983. He claimed that his termination had violated the First Amendment because it had been in retaliation for his testimony against Ms. Schmitz. (Among other things, Ms. Schmitz had allegedly made a series of comments to the effect that she intended to retaliate against the plaintiff for his conduct.)
The Lane case thus implicated an earlier Supreme Court case, Garcetti v. Ceballos (2006) 547 U.S. 410. Garcetti held that, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.” 547 U.S. at 421. Accordingly, such public employees cannot sue if they are terminated for making statements pursuant to their official duties. But Garcetti left open the question of whether the First Amendment protects a public employee who makes a statement regarding knowledge that he learned while performing official duties.
Therefore, the initial question in Lane was whether the plaintiff had been speaking pursuant to his official duties when he testified about Ms. Schmitz. The District Court held that Lane’s testimony regarding Ms. Schmitz was in his capacity as director of the government program and, as such, was part of his official job duties. The Eleventh Circuit Court of Appeals affirmed. These courts thus sought to significantly broaden the holding of Garcetti to include situations in which public employees speak about information that they learned during the course of performing their job duties. Most whistleblowers learn about the subject of their complaints while working. Thus, the lower courts’ interpretation would have ended First Amendment protections for most, if not almost all, public employee whistleblowers.
However, in a unanimous opinion delivered by Justice Sonia Sotomayor, the Supreme Court reversed. The Court rejected the Eleventh Circuit’s reasoning that the plaintiff’s testimony was not protected because the plaintiff had learned about the subject matter of his testimony in the course of his employment. To the contrary, the Court held that speech that merely relates to public employment, or that concerns information that the plaintiff learned during the course of his employment, was not within the scope of Garcetti. In other words, that type of speech may be protected by the First Amendment.
The Supreme Court explained that the test 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.” The Court noted that public employees need to be able to testify in court without fear of retaliation. The Court further held that testimony regarding corruption in a publicly funded program was a matter of significant public concern. Finally, the Court held that the government did not have any interest, let alone a compelling interest, in preventing the plaintiff from testifying.
Lane therefore goes a long way toward limiting the damage caused by Garcetti, and should provide some protection to public employee whistleblowers in the future.
The attorneys at Hunter Pyle Law have handled numerous cases for employees of public entities, including employees of the U.S. Postal Service, the U.S. Forest Service, and the University of California. If you are a public employee and want to discuss your situation at work with an experienced attorney, please call us at 510.444.4400, or email us at email@example.com.