Argument preview: First Amendment protections for public employee’s subpoenaed testimony

On Monday, April 28, the Court will hear oral arguments in Lane v. Franks on the First Amendment protections for a public employee who testifies in court.  There are two respondents — the previous and current presidents of the college in question – and they disagree with each other on the First Amendment question.  The Solicitor General will participate in the oral argument.

Background

Central to the resolution of Lane v. Franks is the reach of Garcetti v. Ceballos, the Court’s latest pronouncement on the First Amendment rights of public employees.  Since Pickering v. Board of Education in 1968, the First Amendment has protected public employees from adverse employment actions when they are “speaking as a citizen” on a matter of public concern.  In Garcetti, the closely divided Court held that, when public employees make statements “pursuant to their official duties,” such speech is not protected by the First Amendment.  The employee in Garcetti was a deputy district attorney in Los Angeles who investigated a law enforcement officer’s affidavit in support of a search warrant and concluded it was false.  The prosecutor wrote a memo recommending the case be dismissed; his supervisors not only vehemently disagreed but also allegedly retaliated against him.  In an opinion by Justice Kennedy, the Court reasoned that when an employee is “simply performing his or her job duties,” there is “no relevant analogue to speech by citizens who are not government employees.” 

In the eight years since Garcetti, courts have varied in their application of the doctrine.  For some courts, Garcetti has seemed a broad mandate insulating public employer actions from First Amendment challenge by any employee.  Other courts, however, have limited and distinguished Garcetti.  The Court has denied certiorari in several closely watched cases, such as Jackler v. Byrne and Bowie v. Maddox, which both involved police officers and reached differing conclusions, arguably producing a circuit split.

The Eleventh Circuit’s opinion in Lane v. Franks is decidedly in the expansive mandate camp.  Indeed, the opinion is a per curiam one, decided without oral argument and intended as non-precedential.  In affirming the district judge’s grant of summary judgment to the public employer, the Eleventh Circuit described Garcetti as “further restricting public employees’ protected speech.”  Relying on its own circuit precedent, including pre-Garcetti cases, the court of appeals ruled that an employee enjoys no First Amendment protection when the speech was made pursuant to his official duties, including “if his speech owes its existence to the employee’s professional responsibilities and is a product that ‘the employer itself has commissioned or created.’”   This broad category included subpoenaed testimony. However, the Eleventh Circuit recognized, albeit in a footnote, that both the Seventh Circuit and Third Circuit had “decided this issue differently,” citing Morales v. Jones and Reilly v. City of Atlantic City.

Even as related by the Eleventh Circuit, however, the circumstances giving rise to Lane v. Franks paint a troubling picture of retaliation for a public employee’s failure to cooperate with political corruption and his resulting testimony.  In 2006, soon after Edward Lane became the director of a program for at-risk youth at Central Alabama Community College (CACC), he looked at the program’s finances.  He discovered that an Alabama state representative, Suzanne Schmitz, was listed on the payroll.  He also discovered she had never performed any work for the program.  Edward Lane raised his concerns about Schmitz, but he was warned by the CACC president (a predecessor to respondent Steve Franks) and CACC’s lawyer that terminating Schmitz’s employment could have negative repercussions for both Lane and CACC.  Nevertheless, Lane did terminate Suzanne Schmitz after she refused to report to work.  Schmitz told another program employee that she planned to “get [Lane] back” for terminating her and that, if he requested money from the state legislature, she would tell him “you’re fired.”  The FBI began investigating Suzanne Schmitz and contacted Edward Lane for information.  Lane testified before a federal grand jury and — pursuant to a subpoena – he testified at Schmitz’s two federal criminal trials for mail fraud and fraud involving a program receiving federal funds.  Schmitz was ultimately convicted, although a divided Eleventh Circuit panel reversed her convictions on some of the counts.

Lane was terminated after his testimony at the first criminal trial.  In January 2009, Franks – who had become president of CACC – terminated the twenty-nine employees of the at-risk youth program, but soon rescinded the termination of all the employees except Lane and one other.  Whether Franks terminated Lane due to Lane’s testimony against Schmitz remains unresolved; an essential issue in the Supreme Court is whether it needs to be. 

Arguments and analysis

The primary question before the Court is whether the Eleventh Circuit was correct in holding that Lane’s testimony was categorically unprotected by the First Amendment, although there is also a secondary issue of whether Franks is entitled to qualified immunity from an award for damages.

There is little support for a straightforward affirmance of the Eleventh Circuit opinion on the First Amendment issue.  Lane is not the only one to argue that the Eleventh Circuit’s categorical exclusion of First Amendment protection for subpoenaed testimony is incorrect:  the Solicitor General, representing the United States as an amicus, agrees with him.  More unusually, the Alabama attorney general — Alabama representing respondent Susan Burrow, the current acting president of CACC — also agrees that the Eleventh Circuit was incorrect to conclude that Lane’s testimony was categorically unprotected by the First Amendment.  Additionally, almost all of the amicus briefs agree with this position, including one from the National Association of Police Organizations, which is perhaps not surprising given that so many of the similar cases involve persons employed in law enforcement.

These arguments dispute the Eleventh Circuit’s conclusion that Garcetti’s “pursuant to official duties” exclusion should extend to speech based on any information gleaned in the course of one’s employment, including when the speech occurs as subpoenaed testimony.  They generally argue that subpoenaed testimony is best considered as the duty of a citizen (more like Pickering’s letter to the editor of a newspaper) rather than of an employee (unlike Garcetti’s memo to his supervisors).  Underlying policy rationales rest not only upon the employee’s rights, but also on the broader governmental interests in truthful testimony and judicial integrity.

One distinction in the arguments supporting reversal of the Eleventh Circuit’s decision is whether being subpoenaed to testify should be a per se exception to Garcetti’s “pursuant to official duties” standard.   A per se rule raises at least three concerns.  First, there are instances in which testifying is part of an employee’s official duties, but whether this might encompass law enforcement officers could be problematic.  A second concern, specifically raised by the Solicitor General, is when the government has a claim of privilege over the information possessed by the employee.  A third problem is inherent in conceptualizing “testimony” as an exception to Garcetti’s rule.  Although the opinion in Garcetti v. Ceballos concentrated on the prosecutor’s memo to his supervisors, the prosecutor also testified in a hearing and reiterated the findings in his memo.  Qualifying any exception to Garcetti to require a subpoena is the obvious solution, but such a requirement could elevate form over substance.

Oral argument might focus on whether there should be a “bright line” rule protecting subpoenaed testimony.  In the reply brief, Lane makes clear that a bright-line rule would be desirable to insure that the “judicial system’s interest in discovering the truth” prevails “over the employer’s parochial interest in achieving a favorable litigation outcome.”   But, Lane argues, it is certainly not necessary, and the Court could decide the case with a “straightforward application” of the “clearly established” precedent of Garcetti.

This “clearly established precedent” argument on the merits supports Lane’s contention that there was a “clearly established” First Amendment right at the time of his termination, so that Franks, the CACC president who terminated Lane, is not entitled to qualified immunity from an award of damages.  On this issue, the Solicitor General and the Alabama attorney general agree with Franks: the law was not sufficiently clearly established.  The “clearly established” hurdle in qualified immunity is always a high one; there are always arguments that the law was uncertain.  Here, the bar is raised higher because, to the extent the lower courts found that the law was clearly established, it was clearly established contrary to Lane’s position.  The Eleventh Circuit, affirming the district judge, concluded that Lane did not have a First Amendment right.  Thus, to prevail on the qualified immunity argument, Lane has to convince the Court that not only did the president of a community college ignore “clearly established” law, but so did four federal judges. 

Conclusion

The cursory Eleventh Circuit opinion affirming summary judgment means that an array of factual issues remain unresolved, including whether Franks actually terminated Lane in retaliation for his testimony.  This could prove fertile ground for questions about the record and for hypotheticals.

But the most important questions might revolve around the “bright line” rule for First Amendment protection for testimony, including the distinction between testimony “pursuant to official duties” and testimony based on information obtained in the course of those official duties.   It will be interesting to see whether there are questions about the necessity of a subpoena as part of any bright-line rule.

While no party is seeking a substantial incursion into Garcetti (and all of the Justices in the Garcetti majority remain on the Court), the Court has the opportunity to limit, clarify, or further expand Garcetti’s reach.  The ultimate ruling has the potential to eliminate First Amendment protections of public employees who risk retaliatory employment actions should they testify, even under subpoena, about political corruption or other governmental wrongdoing.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as counsel to the petitioner in this case. However, the author of this post is not affiliated with the firm.]