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First Amendement Protection in Retaliation Cases

Publications - Client Alert | June 20, 2014

The United States Supreme Court on Thursday held that First Amendment protections extend to public workers who provide subpoenaed testimony. In a unanimous decision, the Court concluded that Edward Lane, a former program director at Central Alabama Community College, should not have been denied First Amendment protection for subpoenaed testimony he gave in criminal fraud cases. In their ruling, the Justices reversed the Eleventh Circuit, which held that Lane’s testimony was part of his official duties as a public employee, and therefore was not protected speech. The Supreme Court strongly disagreed, noting that “sworn testimony in judicial proceedings is a quintessential example of speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation to the court, and society at large, to tell the truth.” The ruling paves the way for First Amendment retaliation claims for public employees compelled to testify in nearly any capacity.

Edward Lane was an employee of a community college's program for at-risk youth. In the course of his employment, he found that then-state representative Suzanne Schmitz was listed on the program’s payroll but was not reporting for work and had not performed work for the program. He was warned by the college officials not to terminate the state representative, but he did so anyway. Schmitz was later investigated by the FBI for fraud. Lane testified pursuant to a subpoena before a federal grand jury and testified at Schmitz's subsequent federal criminal trials in 2008 and 2009 for mail fraud and fraud involving a program receiving federal funds. Lane was terminated from his position at the college after he testified.

In the majority opinion, Justice Sotomayor stated that it would be “antithetical” to conclude that statements made by public employees about the possible corruption of public officials, could never serve as the basis for a First Amendment retaliation claim. A contradictory rule would “place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs,” Sotomayor wrote.

However, the Supreme Court acknowledged the right of public employers to discipline employees based on admissions of wrongful conduct. The Court noted, “Wrongdoing that an employee admits to while testifying may be a valid basis for termination or other discipline.” While the Supreme Court’s opinion allows public employers to terminate an employee for admissions of wrongdoing obtained during subpoenaed testimony, employers should anticipate that employees will challenge any termination for wrongful conduct later confessed to in a deposition.

The Supreme Court affirmed another part of the Eleventh Circuit’s ruling, holding that Steve Franks, the former president of the community college who fired Lane, was entitled to qualified immunity. The Court held that due to a lack of precedent in the 11th Circuit (Alabama, Florida and Georgia), Franks could have reasonably believed that a government employer could fire a worker due to testimony given under oath, and was therefore entitled to qualified immunity, which is only denied to public officials who have violated clearly established law. However, similar protections may not be available to future government employers because the Supreme Court’s ruling sets precisely the precedent that was once lacking in the 11th Circuit.

The full text ruling of Lane v. Franks is available online by clicking here.

Additional Information

For more information on this and other employment law-related questions, please contact your Kutak Rock attorney or one of the employment lawyers.