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State Attorney's Subpoenaed Testimony Afforded 1st Am Protection

By Gabriella Khorasanee, JD on August 05, 2013 | Last updated on March 21, 2019

If a state attorney is subpoenaed to testify at his boss's trial, is his speech protected, or made in the course of his employment?

Last week, the Seventh Circuit held that an attorney's eyewitness testimony is protected speech under the First Amendment.

Assistant state attorney Kirk Chrzanowski was subpoenaed to testify against his boss Louis Bianchi, the McHenry County State Attorney, for alleged official misconduct. Chrzanowski was subpoenaed to testify before a grand jury, and at trial. Following Chrzanowski's testimony, Bianchi began placing inaccurate notes in Chrzanowski's file, and later terminated him.

Chrzanowski claimed that he was fired in retaliation for his testimony, and filed suit against Bianchi alleging violations of federal and state law, based on a First Amendment claim. The U.S. District Court for the Northern District of Illinois held that Chrzanowski's testimony was not protected under the First Amendment, and even if it was, Bianchi was protected by qualified immunity.

The Seventh Circuit disagreed.

Defining Official Duties

The main issue before the court was whether Chrzanowski testified pursuant to his official duties. If he did, then his speech is not afforded the protections of the First Amendment. The district court incorrectly characterized Chrzanowski's speech as part of his employment duties.

The Seventh Circuit looked at Chrzanowski's day-to-day employment duties and found that his job was to prosecute crimes, not to provide eyewitness testimony in criminal prosecutions. The court stated: "The McHenry County State's Attorney's Office does not pay Chrzanowski to witness crimes and then testify about them; it pays him to prosecute crimes."

Qualified Immunity

Next, the Seventh Circuit concluded that the district court incorrectly determined that Bianchi would be afforded the protections of qualified immunity. The court noted that because giving testimony was not what Chrzanowski was employed to do, Bianchi should have reasonably known that "retaliating against Chrzanowski for giving truthful grand jury and trial testimony would violate the First Amendment."

The Seventh Circuit has shed more light on the distinction between speech that is made in the course of one's employment duties, and speech that is protected. Though it's a fine line, it can have significant consequences. In determining whether speech is protected, one must determine whether the speech is what the employee is paid to do.

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