- Does the First Amendment permit the government to retaliate against a public employee for sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary work duties?
- Does qualified immunity preclude a claim for damages in this action?
Lane is the former director of the Community Intensive Training for Youth Program (“CITY”) at Central Alabama Community College (“CACC”); Steve Franks is the former president of CACC. As director of CITY, Lane conducted an audit and discovered that state representative Susan Schmitz was on CITY’s payroll, but had not come to work at the office or performed any work outside the office for CITY. Lane terminated Schmitz’s employment after she refused to report to work. After Schmitz’s termination at CITY, the FBI investigated her for mail fraud and fraud concerning a program receiving federal funds. Lane was subpoenaed and testified at both of Schmitz’s criminal trials. Lane testified that Schmitz had not been reporting to work at CITY, and was only receiving paychecks. Following Schmitz’s criminal trials, Franks terminated Lane. Lane sued Franks in his official and individual capacities, alleging that Franks violated Lane’s First Amendment rights by terminating Lane in retaliation for testifying against Schmitz. The Eleventh Circuit affirmed the district court’s ruling that because Lane’s speech was made in his official capacity as CITY’s director, he failed to state a claim for retaliation. The Supreme Court’s decision will clarify the scope of the First Amendment as it relates to protecting testifying public employees from retaliation by their employers.
Questions as Framed for the Court by the Parties
- Is the government categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities?
- Does qualified immunity preclude a claim for damages in such an action?
Petitioner Edward Lane is the previous Director of the Community Intensive Training for Youth Program (“CITY”) at Central Alabama Community College (“CACC”), and Respondent Steve Franks is the former president of CACC. In 2006, Lane accepted a probationary position as director of CITY, and, as part of his duties, Lane began an audit of CITY’s finances. While conducting this audit Lane discovered that state representative Suzanne Schmitz was on CITY’s payroll, but had not come to work nor performed any work for the program. Lane was warned by CACC’s former president and lawyer that terminating Schmitz’s employment would negatively affect Lane and CACC. After Schmitz refused to report to work, Lane terminated Schmitz’s employment with CITY. Schmitz then sued, seeking to get her job back. Schmitz also told another CITY employee that she would “get [Lane] back” for terminating her. Schmitz went on to say that if Lane ever requested money from the state legislature Schmitz would tell him “you’re fired.”
Following Schmitz’s termination at CITY, the FBI began investigating Schmitz for mail fraud and fraud regarding a different federally funded program. Lane was subpoenaed and testified at Schmitz’s August 2008 federal criminal trial. Lane testified that Schmitz had not been reporting to work at CITY. Lane also testified that he had several phone conversations with Schmitz where he inquired about Schmitz’s work duties, and that he requested that she start reporting to work daily at CITY’s Huntsville office. Schmitz responded that she had gotten her job through her connections with the Alabama Education Association. In writing, Schmitz responded to Lane’s request by stating she would like to “continue to serve the CITY program in the same manner as [she had] in the past.” In February 2009, Lane testified to all of these facts again at Schmitz’s second criminal trial.
As a result of large budget cuts in 2008, Lane and Franks discussed the possibility of laying off all probationary employees. Franks sent termination letters to Lane and twenty-nine CITY employees, all of whom had served less than three years at CITY. In the following days Franks rescinded all of the terminations except for Lane and one other employee. Franks stated that he did this because he discovered that many CITY employees were not actually probationary.
Lane sued Franks in his official capacity as CACC president and in his individual capacity, alleging that Franks terminated Lane as retaliation for testifying against Schmitz, thereby violating Lane’s First Amendment rights. The district court granted Frank’s motion for summary judgment, concluding that because Lane’s speech was made in his official capacity as CITY’s director, Lane did not establish a prima facie case for a retaliation claim. The Eleventh Circuit affirmed. The Supreme Court granted certiorari to determine two questions. First, whether under the First Amendment, the government can retaliate against a public employee for testimony that was compelled by subpoena and not part of the employee’s regular job responsibilities. Second, whether qualified immunity precludes a claim for damages in an action such as this.
FIRST AMENDMENT LIMITATION AND IMPLEMENTATION
As amici curiae in support of Petitioner Lane, the American Civil Liberties Union and the American Civil Liberties Union of Alabama (“ACLU”) argue that a witness who gives sworn testimony at a judicial proceeding is always speaking as a “citizen” on a “matter of public concern,” and therefore should be protected by the First Amendment. The ACLU argues that all sworn statements seek to advance the truth and maintain the integrity of the judicial process. Therefore, the ACLU asserts, a public employee’s sworn statement in a judicial processing is a matter of public concern just the same as any citizen. Additionally, the ACLU contends that a case-by-case review of a witness’s testimony is unnecessary because of the inherent importance of truthful testimony in the judicial system. The ACLU argues that a testifying witness should only be concerned with telling the truth, and not whether their testimony will anger their boss. Accordingly, the ACLU would have the Court establish a bright-line rule protecting all sworn statements under the First Amendment.
Respondent Burrow, acting President of the CACC, argues that the Court should not adopt a rule that all testimony counts as citizen speech touching on matters of public concern. Burrow contends that employees who speak in their official capacity cannot be considered to be speaking as citizens because the government is paying them for their speech. Burrow argues that for many government employees, testifying is a routine part of their job. Additionally, Burrow asserts that other employees are reasonably expected to promote their employer’s official position while testifying. Burrow states that “a governor’s chief of staff, the warden of a prison, the head of a state agency” are all examples of government employees that the government is warranted to replace if they are unable to promote the official government position while testifying. Burrow contends that just like private employers, government employers must be able to ensure that their employees testify accurately about the government’s position.
PUBLIC POLICY INCENTIVES FOR QUALIFIED IMMUNITY
In support of Lane, the First Amendment Coalition argues that to encourage truthful testimony, the Court should recognize the longstanding public policy that in-court testimony must be specially protected against civil claims. The Coalition contends that historically, testifying witnesses have been immune from damages suits and that this immunity remains necessary today. The Coalition further contends that the foremost goal of the judicial system is to reach the truth, and that individual damages claims will only obstruct this goal. Specifically, the Coalition asserts that testifying witnesses could be persuaded to alter their testimony for fear of facing liability. The ACLU also contends that sworn statements must have absolute protection from civil liability to accord with the First Amendment. .
Both Petitioner and Respondent agree that Lane has qualified immunity as a testifying witness. However, with respect to Franks’ liability for terminating Lane, Lane argues that qualified immunity does not protect Franks from liability because his conduct violated a clearly established right under the First Amendment. Lane contends that Franks could not have reasonably believed that he was acting in accordance with the law in the Eleventh Circuit when he terminated Lane.
Burrow counters that when Lane was terminated, there was no clear rule in the Eleventh Circuit that the First Amendment protected all government employees’ testimony concerning work-related matters; therefore, Burrow asserts that Franks has qualified immunity. Furthermore, Burrow contends that a qualified immunity defense should not require state officials to predict changes in federal law. Burrow contends that a bright-line rule which allows an officer to follow the law of their circuit, in spite of how it may differ from other precedents, would allow suits like this one to be resolved much earlier. Burrow asserts that the main reason behind the immunity doctrine is to ensure that unviable claims against government officials are resolved early in the litigation process.
The Eleventh Circuit held that Lane’s testimony was made in his capacity as a government employee and therefore was not protected under the First Amendment. Both Petitioner Lane and Respondent Burrow seek reversal of this determination and argue that Lane gave testimony in his capacity as a concerned citizen on a matter of public concern and therefore warrants First Amendment protection. However, the parties disagree about how to determine who was speaking as a citizen and whether the matter was of public concern. Additionally, Lane believes that Franks is not entitled to qualified immunity because it is not available when an official violates a clearly established right—the right to testify— whereas Burrow argues that qualified immunity exists here and in all cases where government officers’ actions were consistent with governing circuit law.
THE SCOPE OF PROTECTED SPEECH FOR GOVERNMENT EMPLOYEES
Both parties agree that the Court should follow its precedent set forth in Garcetti v. Caballos. In Garcetti, the Courtheld that so long as employees are speaking as a citizen about a matter of public concern, employers can only impose speech restrictions that are necessary for the employers to operate efficiently and effectively.
Lane argues that he gave his testimony as a citizen, not as an employee of the State. He contends that he was subpoenaed in his individual capacity as a fact witness and not under Federal Rule of Civil Procedure 30(b)(6), under which the subpoena is served on an organization who then designates the witness. Lane maintains that he—as an individual—had to decide how to respond to the subpoena, and if he had lied or failed to comply, he alone would have borne the repercussions. Moreover, when Lane testified at Schmitz’s second trial, he had already been terminated from his directorial position.
Lane argues that his testimony is protected by the First Amendment because it relates to a matter of public concern—as shown by the content, form, and context of his testimony. Lane points to Connick v. Myers, where the court recognized that speech giving the public information to evaluate the performance of an elected official is of public concern, as is speech exposing a breach of the public trust. Lane argues that his speech fell into the public-concern category because it revealed Schmitz’s corruption and drew attention to the broader public interest of exposing corruption. Moreover, Lane contends that when public employees, and all citizens, respond to subpoenas, they are performing a duty to society and that testimony vindicates a core First Amendment interest.
Respondent Burrow concedes that the Eleventh Circuit erred in holding that Lane’s speech was entirely unprotected. Burrow contends that the Eleventh Circuit did not follow the practical analysis required by Garcetti, but instead applied an overly broad scope and held that an employee’s testimony will not be protected if it involves facts learned on the job. Burrow posits that the Eleventh Circuit’s faulty ruling arose from a misunderstanding about the facts of the Garcetti case. In Garcetti, the Supreme Court held that the First Amendment did not protect the employee’s speech because the employee was paid to write the speech which he then claimed to be protected. However, other Supreme Court holdings show that employee speech does not lose protection simply because it concerns the subject matter of employment. Therefore, the fact-based analysis called for by Garcetti shows that Lane’s speech was not made pursuant to his official duties. Additionally, Burrow agrees that although what constitutes a public concern is less than clear, Lane’s testimony obviously fell within the scope as it was integral to exposing and proving Schmitz’s corrupt scheme.
Although, Burrow agrees that Lane testified as a citizen on a matter of public concern, Burrow expresses unease that the Court may follow other circuits and develop a per se rule treating all subpoenaed testimony by a government employee as a matter of public concern. Instead of a per se rule, Burrow argues that courts should use the same practical analysis employed in assessing other kinds of employee speech. Although some circuits have held that all speech compelled by a subpoena is necessarily speech by a citizen, Burrow contends that the First Amendment should not prevent retaliation in cases where the government is paying employees who may testify as a routine part of their official duties, such as a police officer testifying about traffic stops, and crime scene technicians testifying about processing evidence. If questions arose as to a testifying police officer’s credibility, the mere fact that he was testifying should not prohibit supervisors from evaluating his performance.
Burrow also claims that Lane’s argument that subpoenaed testimony is vindicating a core First Amendment interest would turn the inquiry into a per se rule. Burrow contends that society’s interest in candid testimony should not automatically make all testimony into a matter of public concern. Rather, Burrow states that courts must evaluate both the content and forum to determine whether the speech regards a matter of public concern.
Burrow argues that even though Lane spoke as a citizen on a matter of public concern, qualified immunity bars a suit against Franks. Burrow argues that under Supreme Court precedent, qualified immunity shields officials from suits for money damages unless the official violated a statutory or constitutional right that was “clearly established” at the time of the challenged conduct.
Burrow contends that it was not “clearly established” that employees’ testimony about facts relating to employment was protected when Franks fired Lane. Burrow claims that the Eleventh Circuit has consistently followed the rule that involuntary testimony about an employee’s job is broadly unprotected by the First Amendment. For example, Burrow cites Morris v. Crow, where the Eleventh Circuit did not allow a police officer’s testimony to qualify for First Amendment protection because the officer was not speaking as a citizen. In Morris, the officer testified that another officer violated office policy when responding to an emergency. Although Burrow admits that the facts of Morris are distinguishable, Burrow claims that its holding—that involuntary testimony regarding an employee’s job is generally unprotected—dictated the result in this case at the circuit-court level.
Lane argues that in determining qualified immunity the appropriate question is whether Franks could have reasonably believed that he was permitted to retaliate against an employee assisting in a federal corruption prosecution. Lane contends that Eleventh Circuit precedent supported Lane on this question at the time he was terminated. Lane points to Martinez v. City of Opa-Locka, where the Eleventh Circuit found an employee of the city’s purchasing department was retaliated against after she testified that a superior had violated bid procedures to purchase furniture for City Hall. In Martinez, the Eleventh Circuit recognized the plaintiff’s First Amendment claim and denied the defendant qualified immunity. Lane contends that because the facts of Martinez align with this case more closely than those of Morris, and because of the virtual unanimity of the other circuits, no public official in 2009 could reasonably believe that retaliation was constitutional in this case.
This case will significantly impact the development of First Amendment law in the area of retaliation claims. Both parties agree that the determination below should be overturned and that Lane’s speech should be given First Amendment protections because he gave his testimony as a private citizen on a matter of public concern. But Burrow expresses concern about the dangers of creating a per se rule treating all subpoenaed testimony from a public employee as a matter of public concern. She thus argues for a fact-based, case-by-case inquiry into the content and context of the testimony at issue. Lane argues that Franks does not have immunity because he violated a constitutional right that was clearly established by case law in the Eleventh Circuit at the time of Lane’s termination, to which Burrow responds that Eleventh Circuit precedent leaves Lane’s testimony unprotected under the First Amendment or— at the very least—that Franks had not violated clearly established circuit law. Burrow contends that government officials should always be able to follow the law of their circuit without having to predict any future rulings by the Court. The outcome of this case will delineate the standard for assessing whether a public employee’s testimony is protected under the First Amendment, as well as a standard for determining when a public employee has qualified immunity.
- Ruthann Robson, Constitutional Law Prof Blog, Court Grants Certiorari in Employee First Amendment Case: Lane v. Franks, (Jan. 19, 2014)
- Kevin P. McGowan, BNA.com, Court Will Review First Amendment Case of Employee Fired After Trial Testimony, (Jan. 21, 2014)