Supreme Court strengthens First Amendment protection for public employees

On June 19, 2014, the U.S. Supreme Court strengthened First Amendment protection for public employees. Although not specific to the private sector, the Court’s decision should not go ignored by private employers.

In Lane v. Franks, et al., the Court unanimously held that Edward Lane, the former director of a program for underprivileged youth operated by Central Alabama Community College, was entitled to First Amendment protection for subpoenaed testimony he gave in a criminal fraud case against former Alabama State Sen. Suzanne Schmitz. During an internal audit of the youth program’s expenses, Lane learned that Schmitz, who was on the program’s payroll, had not been reporting to work. Lane shared his finding with the college’s president and its attorney. They warned him that firing Schmitz could have negative repercussions for him and the college. Nonetheless, when Schmitz refused to appear in the office, Lane fired her.

Schmitz’s termination drew the FBI’s attention, which initiated an investigation into Schmitz’s employment with the youth program. Eventually, Lane testified before a federal grand jury about his reasons for firing Schmitz. The grand jury indicted Schmitz on four counts of mail fraud and four counts of theft concerning a program receiving federal funds. The indictment alleged that Schmitz had collected $177,251.82 in federal funds even though she performed “virtually no services,” “generated virtually no work product” and “rarely even appeared for work” at the program offices. During two trials, Lane testified under subpoena regarding the events that led to his terminating Schmitz. The second jury convicted Schmitz, and she was sentenced to 30 months in prison.

Meanwhile, the youth program was experiencing considerable budget shortfalls, and Lane recommended layoffs to address the financial difficulties. In January 2009, college president Steve Franks decided to terminate 29 probationary program employees, including Lane. Shortly thereafter, however, Franks rescinded all but two of the 29 terminations – those of Lane and one other employee. In September 2009, the college eliminated the youth program and terminated the program’s remaining employees.

In January 2011, Lane sued Franks in his individual and official capacities, alleging that Franks had violated the First Amendment by firing him in retaliation for his testimony against Schmitz. The district court and Eleventh Circuit dismissed his claim, holding that Lane’s testimony was part of his official duties as a public employee and, as such, was not protected speech.

At oral arguments before the Supreme Court, the college and the U.S. government took the position that Lane’s testimony was protected under the First Amendment, but that Franks deserved qualified immunity. The High Court agreed.

“Government employers, like private employers, need a significant degree of control over their employees’ words and actions.” In determining whether a public employee’s speech is entitled to First Amendment protection, the Court balances the employee’s interests as a citizen commenting on matters of public concern with the state’s interests as an employer promoting the efficiency of the public services it performs through its employees.

Writing on behalf of the court, Justice Sonia Sotomayor stated that Lane’s testimony during Schmitz’s trials was “clearly” protected speech made by a citizen on a matter of public concern, even though Lane discovered the information he testified on while working as a public employee. The Court opined 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.” As such, the First Amendment protects a public employee who provides truthful sworn testimony, compelled by subpoena, outside the scope of his ordinary job responsibilities.

The Supreme Court’s decision in Lane is specific to public employees. There is no First Amendment protection for “free speech” in the privateworkplace, though other laws may protect the speech of a private employer’s employees. The National Labor Relations Board (NLRB) limits an employer’s right to restrict employee dialogue – both in the traditional form and on social media – when involving terms and conditions of employment. Whistleblower and anti-retaliation laws protect employees’ speech that may be unfavorable about the employer. Speech that would constitute discrimination or harassment generally is prohibited in both private and public workplaces, and confidentiality rules often are enacted by employers to protect trade secrets.

Protections for employee speech may only continue to grow. The NLRB currently is considering overturning a 2007 rule and permitting employees to use company email systems during non-work periods to discuss terms and conditions of their employment. Lane v. Franks – though specific to public workers – may be viewed as one step in expanding protections for employee speech. Public and private employers should consider the risks associated with disciplining or terminating an employee who speaks negatively about the employer when testifying pursuant to a subpoena.