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SCOTUS Sleeper: Speech Rights of Government Employees Returns

By William Peacock, Esq. | Last updated on

Government employees have free speech rights when discussing a matter of public concern. Except when it disrupts the workplace. Or when the speech is made pursuant to their job duties. Citizen speech is protected. Official speech is not.

It's a convoluted rule, this standard borne from Garcetti v. Ceballos. How does one determine if speech is made as a citizen or as an employee? As the Wait a Second! blog notes, Garcetti was initially interpreted narrowly (speech is protected unless that speech is mandated by one's job duties) but has since been broadened by the circuit courts to include pretty much anything that you learn about in the line of duty.

Think about that for a second. What whistleblowing about matters of public interest won't come from one's official duties? This is where Lane v. Franks comes in, and it could mean big things for protecting whistleblowers and public employees' speech.

Lane Snitched on a Corrupt Politician

Edward Lane was the director of the Community Intensive Training for Youth (CITY) program at Central Alabama Community College. Shortly after starting, he noticed that a local politician, Suzanne Schmitz, had a no-show gig where she was paid for not showing up.

He fired her.

Later, he was subpoenaed for her grand jury proceedings and two criminal trials. Along with 29 coworkers, he was canned due to budget cuts in 2009, after he testified. Twenty-seven of those employees were rehired. He, obviously, wasn't one of them.

Cert. Granted

The Supreme Court granted certiorari to address two questions:

  1. "Whether the government is 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"; and
  2. "Whether qualified immunity precludes a claim for damages in such an action."

Garcetti Clarified or Subpoena Wildcard?

Barring a SCOTUS surprise, there are three likely ways in which this case could end. Many would prefer a clarification of Garcetti, as the status quo is incomprehensible. As is, employees can speak, on matters of public concern, but not really, because they probably learned the information at work. Really, they can't speak at all, if they want to keep their job.

Another possibility is the Court using the subpoena wildcard as the dispositive factor. This wasn't a case of a guy running to the papers -- he was compelled by law to testify. Prison for obstruction or lose your job? Not exactly a fair choice, is it?

The subpoena issue also presents a significant circuit split. The Seventh and Ninth Circuits have held that compelled testimony is protected, while the D.C. Circuit has held that compelled testimony is protected while voluntary testimony may not be. The Eleventh Circuit has a long line of cases on the other side, not protecting subpoenaed speech.

Qualified Immunity: Easy Way Out?

We just spent 400 words lamenting the muddled state of Garcetti. The second cert. question asks whether qualified immunity applies. (As a refresher, the qualified immunity test asks if a "reasonable person" in the defendant's position would have known that his or her actions violated clearly established law.) No recovery means no lawsuit.

At the time Lane was (ahem) "laid off," the Garcetti standard was so muddled that there was no way to tell if he was speaking as a citizen or as an employee, or whether the speech (clearly a matter of public concern) was protected or unprotected. The Court could punt on the Garcetti issue entirely by holding that qualified immunity applies.

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