Hoeppner Wagner & Evans LLP
219-464-4961

Supreme Court Holds That Testimony by Public Employee May be Protected Speech Under the First Amendment

lu_hwe_logo.jpgWhen a government employee testifies, pursuant to subpoena, outside the course of his ordinary job responsibilities, the testimony is protected speech under the First Amendment, and adverse employment actions based on the speech may be unlawful if the speech addresses a matter of public concern and the government/employer has no justification for taking the adverse action against its employee. The Supreme Court recently clarified the line between speech as a citizen and speech as a public employee, and has provided precedent in the form of a specific example: speech compelled by subpoena as an individual citizen. Government employees may give such testimony without fear of retaliation by their employers when they do so as individuals on matters of public concern.

When a government employee testifies, pursuant to subpoena, outside the course of his ordinary job responsibilities, the testimony is protected speech under the First Amendment, and adverse employment actions based on the speech may be unlawful if the speech addresses a matter of public concern and the government/employer has no justification for taking the adverse action against its employee.

In a recent opinion on this issue, the Supreme Court of the United States held that an employee of the state of Alabama, subpoenaed to testify regarding a second employee's activities in the second employee's trial for fraud and theft, was protected from retaliation by the employer when he testified truthfully and the testimony was given outside the scope of his ordinary job duties and was a matter of public concern. On June 19, 2014, in Lane v. Franks, a director of a community college program in Alabama fired an Alabama State Representative, who was also an employee of the college, for non-performance of job duties. The director later testified, under subpoena, at the State Representative's trial for mail fraud and theft of public funds. The director was later terminated, and filed suit claiming that his testimony was protected by the First Amendment and that his termination was in retaliation for the testimony he gave against the State Representative. Both the trial court and the Eleventh Circuit Court of Appeals held that the director's speech was not protected.

The Supreme Court explained that its long standing precedent required an analysis of whether the director's speech was made in his capacity as a citizen; whether the speech addressed a matter of public concern; and whether the government employer had an adequate justification for taking the adverse action. Citing to its prior precedent in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563 (1968), and Garcetti v. Ceballos, 547 U.S. 410 (2006), the Court first analyzed whether the director's speech was made in his role as an employee of the state or as a citizen. The Court reiterated its long-held position that public employees do not relinquish their citizenship when they accept public employment. The Court also held that when a person testifies under oath in court, he is bound by the obligation to speak the truth. This obligation binds all citizens who testify, including public employees, and it is an independent obligation from any imposed on an individual by his status as a public employee. In the Lane case, although the subject matter of the director's testimony was acquired in the course of his employment, his testimony was given under subpoena binding him individually, and was therefore not given within the scope of his employment duties. In a concurring opinion, several justices specifically explained that the Lane opinion does not extend to situations where an employee is subpoenaed in his or her official capacity.

Finding that the director's testimony was given in his capacity as a citizen, the Supreme Court next addressed whether the subject matter was of public concern. Finding that the content of the testimony, corruption in a public program and misuse of public funds, involved a matter of significant concern to the public, the Court held that the director's speech was protected by the First Amendment absent a showing of adequate justification by the government in taking action against the director for his testimony. The Court reiterated the requirement that where a government employee's speech involves a matter of public concern, a government employer must make a strong showing of the need to protect its interest in effective and efficient fulfillment of their responsibilities in order to take action based on the employee's speech. In the Lane case, there was no evidence that the state's interest in effectively administering its community colleges and programs outweighed the director's interest and obligation to testify truthfully as a citizen under subpoena in a judicial proceeding. There was no showing that the director's testimony was untruthful or contained confidential or privileged information. As a result, the Court held that the director's testimony was protected speech under the First Amendment, and that his employer could not take adverse employment action against him for making that speech.

In sum, the Supreme Court has further clarified the line between speech as a citizen and speech as a public employee, and has provided precedent in the form of a specific example: speech compelled by subpoena as an individual citizen. Government employees may give such testimony without fear of retaliation by their employers when they do so as individuals on matters of public concern. It remains to be seen, however, whether the same is true when the witness is subpoenaed in their capacity as a government employee to testify about subject matter directly within the scope of their job duties.

No Comments

Leave a comment
Comment Information
Super Lawyers Hoeppner Wagner & Evans LLP | 2018 | Recognized by Best Lawyers AV Preeminent | Martindale-Hubbell Lawyer Ratings Best Lawyers | Best Law Firms | US News 2017 Listed in Best Lawyers | Linking Lawyers And Clients Worldwide
Email Us For a Response

Contact The Firm In Valparaiso And Merrillville, Indiana

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Privacy Policy

Hoeppner Wagner & Evans LLP
Office location Office location

Valparaiso Office
Chase Building
103 East Lincolnway
Valparaiso, IN 46383

Phone: 219-464-4961
Fax: 219-465-0603
Map & Directions

Merrillville Office
8585 Broadway - Suite 790
Merrillville, IN 46410

Phone: 219-769-6552
Fax: 219-738-2349
Map & Directions