Vol. 29 No. 18 Public Employees Subpoened Testimony Alleging Illegal Activity at His Agency is Protected Under 1st Amendment


 On June 19, 2014, the United States Supreme Court unanimously ruled, inLane v. Franks, that a state employee’s sworn testimony concerning alleged illegal activity within the agency at which he worked, constituted First Amendment protected speech.  Previous court rulings have held that when a public employee speaks out, as part of his or her job, about matters which could even involve public corruption, the employee’s speech was not protected under the First Amendment.

The Court ruled that “truthful testimony under oath by a public employee outside of the scope of his ordinary job duties is speech as a citizen for First Amendment purposes.  That is so even when the testimony relates to his public employment or concerns information learned during that employment.”


Edward Lane was the Director of Community Intensive Training for Youth (CITY), a pro­gram for underprivileged youth operated by Central Alabama Com­munity College (CACC).

He conducted an audit of the program’s expenses and discovered that Suzanne Schmitz, an Alabama State Representative who was on CITY’s payroll, had not been re­porting for work. Lane eventually terminated Schmitz’ employment and federal authorities, shortly thereafter, indicted Schmitz on charges of mail fraud and theft concerning a program receiving federal funds.   Lane testified, under subpoena, regarding the events that led to his terminating Schmitz and she was convicted and sentenced to 30 months in prison.

Steve Franks, CACC’s president, ter­minated Lane, along with 28 other employees, ostensibly to address the program’s financial difficulties.However, a few days later, Franks rescinded all but 2 of the 29 terminations—those of Lane and one other employee.

Lane sued Franks in his individual and official ca­pacities, under 42 U. S. C. §1983, alleging that Franks had violated the First Amendment by firing him in retaliation for testifying against Schmitz.

The District Court granted Franks’ motion for summary judgment. The Eleventh Circuit U.S. Court of Appeals affirmed, holding that Lane’s testimony was not entitled to First Amendment protection.  The Court of Appeal reasoned that Lane spoke as an employee and not as a citizen be­cause he acted pursuant to his official duties when he investigated and terminated Schmitz’ employment.  The Supreme Court accepted the case for review.

Supreme Court Decision

“Almost 50 years ago, this Court declared that citizens do not surrender their First Amendment rights by accepting public employment. Rather, the First Amendment protec­tion of a public employee’s speech depends on a careful balance ‘between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’”

However, stated the Court, “today, we consider whether the First Amendment similarly protects a public employee who provided truthful sworn testimony, compelled by sub­poena, outside the course of his ordinary job responsibilities. We hold that it does.”

The Court noted that when Lane discovered that Schmitz was not showing up for work, he first discussed it with her, and then brought it to the attention of CACC’s president and its attorney.  “They warned him that firing Schmitz could have negative repercussions for him and CACC.”  Nonetheless, he again instructed Schmitz to report for work and when she didn’t, he terminated her employment.  Schmitz told another employee that she would “get back” at Lane for firing her.

Subsequent to her termination, the FBI initiated an investigation and, in November 2006, Lane testified before a federal grand jury about his reasons for firing Schmitz.  In November 2008, Lane began report­ing to respondent Steve Franks, who had become presi­dent of CACC in January 2008.  Lane was terminated in early 2009 and filed suit.

The Supreme Court noted that “the District Court relied on Garcetti v. Ceballos, 547 U. S. 410 (2006), which held that ‘when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.’”

The 11th Circuit agreed with that analysis and held that, “[e]ven if an employee was not required to make the speech as part of his official duties, he enjoys no First Amendment protection if his speech ‘owes its existence to [the] employee’s professional responsibilities’ and is ‘a product that the ‘employer himself has commis­sioned or created.’ He did not act as a citizen because he was acting pursuant to his official duties when he investigated Schmitz’ employment, spoke with Schmitz and CACC officials regarding the issue, and terminated Schmitz.”

The Supreme Court stated that “in Garcetti, we described a two-step inquiry into whether a public employee’s speech is entitled to protection:

“The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.”

“In describing the first step in this inquiry, Garcetti distinguished between employee speech and citizen speech. Whereas speech as a citizen may trigger protection, the Court held that ‘when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Applying that rule to the factsbefore it, the Court found that an internal memorandum prepared by a prosecutor in the course of his ordinary job responsibilities constituted unprotected employee speech.”

“The sworn testimony in this case is far removed from the speech at issue inGarcetti – an internal memorandum prepared by a deputy district attorney for his supervisors recommending dismissal of a particular prosecution. TheGarcetti Court held that such speech was made pursuant to the employee’s ‘official responsibilities’ because ‘[w]hen [the employee] went to work and performed the tasks he was paid to perform, [he] acted as a government employee. The fact that his duties sometimes required him to speak or write does not mean that his supervisors were prohibited from evaluating his performance.’”

The Supreme Court stated that “speech by citizens on matters of public concern lies at the heart of the First Amendment, which ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the peo­ple.’ This remains true when speech concerns information related to or learned through public employment. After all, public employees do not renounce their citizenship when they accept employment, and this Court has cautioned time and again that public employers may not condition em­ployment on the relinquishment of constitutional rights.”

At the same time, however, the Supreme Court recognized that “Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.  Pickering [Pickering v. Board of Ed. of Township High School Dist., 391 U. S. 563 (1968)] provides the framework for analyzing whether the employee’s interest or the government’s interest should prevail in cases where the government seeks to curtail the speech of its employees. It requires “balanc[ing] . . . the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

“It bears emphasis that our precedents dating back to Pickering have recognized that speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment.”

Furthermore, said the Court, “the importance of public employee speech is especially evident in the context of this case: a public corruption scandal.”

“It would be antithetical to our jurisprudence to conclude that the very kind of speech necessary to prosecute corruption by public officials—speech by public employees regarding information learned through their employment—may never form the basis for a First Amendment retaliation claim. Such a rule would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.”

“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.”  Therefore, “that independent obligation renders sworn testimony speech as a citizen and sets it apart from speech made purely in the capacity of an employee.”

Additionally, the Court stated that, “unlike speech in other contexts, testimony under oath has the formality and gravity necessary to remind the witness that his or her statements will be the basis for official governmental action, action that often affects the rights and liberties of others.”  As such, “we hold, then, that Lane’s truthful sworn testimony at Schmitz’ criminal trials is speech as a citizen on a matter of public concern.”


It must be noted that the Court focused on a public employee testifying in court, pursuant to a subpoena.

However, the Supreme Court said that, “a public employee’s sworn testimony is not categorically entitled to First Amendment protection simply because it is speech as a citizen on a matter of public concern. Under Pickering, if an employee speaks as a citizen on a matter of public concern, the next question is whether the government had ‘an adequate justification for treating the employee differ­ently from any other member of the public’ based on the government’s needs as an employer.”

In this case, “Respondents do not assert, and cannot demon­strate, any government interest that tips the balance in their favor. There is no evidence, for example, that Lane’s testimony at Schmitz’ trials was false or erroneous or that Lane unnecessarily disclosed any sensitive, confidential, or privileged information while testifying.”

It appears, therefore, that testimony under subpoena, regarding matters of public concern, but which are known to the employee as a result of his or her job responsibilities, may be protected under the First Amendment.

It will be necessary to analyze what is involved in the particular case, and whether the criteria as set forth in this case are met.  First Amendment issues are complex under the best of circumstances and more so when involving public employees.  As such, it is imperative that advice and guidance be sought out from your agency’s legal counsel before proceeding in such matters.

As always, if you wish to discuss this case in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.

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