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First Amendement Protection in Retaliation Cases
June 20, 2014
The United States Supreme Court on Thursday held that First Amendment protections extend to public
workers who provide subpoenaed testimony. In a unanimous decision, the Court concluded that Edward
Lane, a former program director at Central Alabama Community College, should not have been denied
First Amendment protection for subpoenaed testimony he gave in criminal fraud cases. In their ruling,
the Justices reversed the Eleventh Circuit, which held that Lanes testimony was part of his official
duties as a public employee, and therefore was not protected speech. The Supreme Court strongly
disagreed, noting that 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. The ruling paves the way for First Amendment retaliation claims for public
employees compelled to testify in nearly any capacity.

Edward Lane was an employee of a community college's program for at-risk youth. In the course of his
employment, he found that then-state representative Suzanne Schmitz was listed on the programs
payroll but was not reporting for work and had not performed work for the program. He was warned by
the college officials not to terminate the state representative, but he did so anyway. Schmitz was later
investigated by the FBI for fraud. Lane testified pursuant to a subpoena before a federal grand jury and
testified at Schmitz's subsequent federal criminal trials in 2008 and 2009 for mail fraud and fraud
involving a program receiving federal funds. Lane was terminated from his position at the college after he
testified.

In the majority opinion, Justice Sotomayor stated that it would be antithetical to conclude that
statements made by public employees about the possible corruption of public officials, could never
serve as the basis for a First Amendment retaliation claim. A contradictory 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, Sotomayor wrote.

However, the Supreme Court acknowledged the right of public employers to discipline employees based
on admissions of wrongful conduct. The Court noted, Wrongdoing that an employee admits to while
testifying may be a valid basis for termination or other discipline. While the Supreme Courts opinion
allows public employers to terminate an employee for admissions of wrongdoing obtained during
subpoenaed testimony, employers should anticipate that employees will challenge any termination for
wrongful conduct later confessed to in a deposition.

The Supreme Court affirmed another part of the Eleventh Circuits ruling, holding that Steve Franks, the
former president of the community college who fired Lane, was entitled to qualified immunity. The Court
held that due to a lack of precedent in the 11th Circuit (Alabama, Florida and Georgia), Franks could
have reasonably believed that a government employer could fire a worker due to testimony given under
oath, and was therefore entitled to qualified immunity, which is only denied to public officials who have
violated clearly established law. However, similar protections may not be available to future government
employers because the Supreme Courts ruling sets precisely the precedent that was once lacking in
the 11th Circuit.
The full text ruling of Lane v. Franks is available online by clicking here.
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