US Supreme Court Clarifies Public Employee Free Speech Rights
September 1, 2014 by Andrew Baker
Public employees enjoy free speech rights, the same as all citizens, when they speak “as citizens,” but their speech rights are extremely limited when they speak “as employees.” The line between citizen speech and employee speech is often hard to draw, but the U.S. Supreme Court on June 19 issued a unanimous decision bringing a bit of clarity to the situation. The Court ruled that the First Amendment protects testimony public employees give in court when they are subpoenaed to testify, even when they testify about matters the employee learned of on the job. The case of Lane v. Franks provided the opportunity for this ruling that protects the rights of employees to free speech in this circumstance.
This might seem an obvious result, but several lower courts had ruled previously that whenever a public employee speaks about information the employee obtained on the job, no matter what the setting, the speech is “employee speech” and thus not protected by the First Amendment.
The case involved Edward Lane who was in charge of a community college program for at-risk youth. He discovered that a state politician on his payroll, one of his highest-paid employees, never came to the office and never actually performed any work – so he terminated her. Later, when Lane was subpoenaed to testify about that experience before a grand jury, and at the politician’s two subsequent corruption trials, he did so truthfully. Shortly thereafter, Lane was fired by the community college’s president, Steve Franks. Lane sued alleging retaliation for his free speech – his testimony.
The Court most recently considered the First Amendment rights of public employees in 2006. In that case, Garcetti v. Ceballos, a sharply divided court limited the First Amendment rights of public employees, ruling that while the First Amendment protects their speech when they’re acting “as citizens,” they don’t have protection for speech “pursuant to… official responsibilities.”
In Lane v. Franks, the Supreme Court partially clarified the contours of Garcetti, finding that Lane’s testimony was speech as a citizen on a matter of public concern, and emphasizing that public employees must be able to speak freely on such matters without fear of retaliation. As the Court explained, “the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech. The critical question 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, however, that its decision is relatively narrow; it does not address “whether truthful sworn testimony would constitute citizen speech under Garcetti when given as part of a public employee’s ordinary job duties[.]” So, for example, whether a police officer’s testimony in court as an ordinary part of the officer’s job constitutes “citizen speech” remains an open question. Public employees and the legal community will need to wait until other cases involving public employers who take adverse action against an employee who speaks up on matters related to his or her job. Beeson, Tayer and Bodine (BT&B) has been involved in labor and employment law cases where precedence has been set during its 75+ years as a major California employment and labor law firm. To see some of those cases or to request a legal assessment of your job or employment rights situation visit our website or find us on Facebook.
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