Was testifier speaking as an employee or citizen?
By Kimberly Atkins
The Daily Record Newswire
WASHINGTON, DC — The justices of the U.S. Supreme Court tackled a host of issues in a multi-layered First Amendment case involving alleged government corruption and claims of employment retaliation and qualified immunity.
The case of Lane v. Franks, No. 13-483, was brought by Edward Lane, a director of a youth program at Central Alabama Community College. During the course of his employment, he fired a state representative who was on the college payroll because she had not performed any work for the program.
Lane was subpoenaed as part of a criminal proceeding involving charges of corruption filed against the state representative. He provided federal grand jury testimony against her. Subsequently, the school’s president, Steve Franks, terminated Lane.
Lane sued Franks as well as acting college president Susan Burrow, alleging that his termination was in retaliation for his testimony in violation of his First Amendment free speech rights.
A federal district court granted summary judgment in favor of Franks and Burrow on qualified immunity grounds.
The 11th U.S. Circuit Court of Appeals affirmed on different grounds, holding that Lane’s First Amendment rights were not implicated because he testified in his official capacity as a public employee.
The Supreme Court granted certiorari to address both the First Amendment and qualified immunity issues.
Speaking as an employee or citizen?
Tejinder Singh, counsel in the Washington office of Goldstein & Russell PC, argued on Lane’s behalf that testifying before the federal grand jury was not part of his job and therefore he should not lose his First Amendment protections.
“He spoke as a citizen in a matter of public concern,” Singh said.
“What if the person who testified had a responsibility for investigating corruption, … like an inspector general?” Justice Samuel A. Alito Jr. asked. “Could there ever be a situation where a government employee’s testimony is within the scope of that employee’s duties?”
Singh said the fact that a subpoena was required in this case is “strong evidence” that the testimony was outside Lane’s duties.
On the issue of qualified immunity, Justice Elena Kagan asked whether the court should address the matter at all since “it wasn’t decided below.”
“Why shouldn’t we just kick it back to the 11th Circuit?” she asked.
Singh said the lower court addressed the issue in a footnote, and that was enough to preserve the matter for Supreme Court consideration.
“The issue is squarely before you,” he said.
Deputy U.S. Solicitor General Ian H. Gershengorn argued as amicus for partial reversal.
“We agree that petitioner here spoke as a citizen when he testified, but we disagree with the suggestion … that government employees always speak as citizens,” Gershengorn said. “Factual testimony based only on knowledge that an employee has pursuant to their official duties would not be protected speech because [that] information is only gathered as part of their official duties.”
Subpoenas and circuit splits
Alabama Attorney General Luther J. Strange III argued on behalf of Burrow that the test for First Amendment protection should be “whether the employee’s job duties encompassed the speech in question.”
He conceded that under that test, Lane would be protected. But, he argued, Burrow and Franks are nonetheless protected by qualified immunity because their actions were based on 11th Circuit precedent in an area of law that was not clearly established.
Although rulings in other circuits would have cast doubt on the ability to fire Lane in these circumstances, “we can’t expect employees who have to make decisions all the time to be aware of what’s going on in other circuits and so forth,” Strange said.
“So you think if every other circuit has come out the other way … employees are protected in following that?” Chief Justice John G. Roberts Jr. asked.
“I think they are protected if they rely on the law in their circuit,” Strange replied.
Mark T. Waggoner, a member of Hand Arendall LLC in Birmingham, Alabama, argued on Franks’ behalf but took a different approach to the First Amendment issue.
Because Lane’s testimony was about his job duties, he was not acting as a private citizen, Waggoner said.
The issuance of a subpoena should not determine the outcome, he argued. “It is the character of the speech that has to be looked at.”
A decision is expected later this month.
