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Justices Ponder First Amendment Protection For State Worker Fired After Trial Testimony

Tuesday, April 29, 2014

By Kevin P. McGowan  

April 25 — A state community college employee in Alabama fired after testifying in a criminal trial against a state legislator engaged in First Amendment-protected speech and can seek damages under the Civil Rights Act of 1871 (42 U.S.C. § 1983) against the college president who terminated him, the fired employee's lawyer argued before the U.S. Supreme Court April 28.

Representing former Central Alabama Community College (CACC) employee Edward Lane at oral argument, attorney Tejinder Singh said the court should rule that a public employee who testifies on a matter of public concern, when such testimony is not part of his job duties, is protected by the First Amendment, subject to the balancing test set out in Pickering v. Board of Education, 391 U.S. 563, 1 IER Cases 8 (1968).

The court should rule that a public employee who testifies on a matter of public concern, when such testimony is not part of his job duties, is protected by the First Amendment, subject to the balancing test set out in Pickering v. Board of Education, Tejinder Singh argued on behalf of the discharged community college program director.

Singh urged the justices to reverse the U.S. Court of Appeals for the Eleventh Circuit's unpublished opinion that Lane enjoyed no First Amendment protection because his testimony related solely to factual matters Lane had learned on the job as director of the college's Community Intensive Training for Youth (CITY) program and he therefore spoke as an employee rather than a citizen within the meaning of Supreme Court precedent (523 Fed. Appx. 709, 37 IER Cases 870 (11th Cir. 2013)).

The justices could rule in Lane's favor on the First Amendment issue without deciding broader issues of whether public employees who testify as part of their jobs or who testify in forums other than courts holding criminal trials similarly are protected, said Singh, of Goldstein & Russell in Washington.

Qualified Immunity May Bar Remedy

Attorneys representing the state of Alabama and the U.S. Department of Justice didn't quarrel with Lane's contention that his testimony under subpoena in the federal fraud trial of former Alabama legislator Suzanne Schmitz was First Amendment-protected speech under standards articulated in Garcetti v. Ceballos, 547 U.S. 410, 24 IER Cases 737 (2006).

But they urged the court to affirm the Eleventh Circuit's ruling that even if the First Amendment applies, defendant Steven Franks, the former CACC president who fired Lane in January 2009, has qualified immunity from Section 1983 damages because the termination violated no “clearly established” constitutional right at the time of discharge.

Representing Franks, attorney Mark Waggoner argued that under Garcetti, Lane's testimony was not protected by the First Amendment.

Although Lane indisputably spoke on a matter of public concern, Lane testified as an employee rather than a citizen because he spoke only of factual matters learned from his employment and his testimony was “inseparable” from his job duties as CITY director, said Waggoner, of Hand Arendall LLC in Birmingham, Ala.

‘Citizen Analog' Test in Garcetti

During the court's questioning, some justices wondered aloud why a public employee who testifies truthfully under subpoena in a federal criminal trial wouldn't be protected by the First Amendment, regardless of job duties.

If a public employee testifies truthfully and reveals corruption within the public sphere, can he be punished for that? Chief Justice John Roberts asked Waggoner.

Citing a “citizen analog” test from Garcetti, Waggoner said if a public employee testifies only about factual information acquired as a result of his job and unavailable to an ordinary citizen, the employee's testimony is not protected by the First Amendment under Garcetti's formula for distinguishing employee speech from citizen speech.

What's the employee supposed to do when he gets a subpoena? Roberts asked. The former CACC president would “never suggest” any public employee receiving a subpoena should not comply or not testify truthfully, Waggoner said. But you are saying the employee can be fired, Roberts said.

Justice Sonia Sotomayor asked whether the line that Waggoner argues that Garcetti draws between protected and unprotected speech is “sensible in any way.”

Waggoner said even if a public employee who testifies lacks First Amendment protection, “a powerful network of legislative enactments” prohibits retaliation against employees who testify and can provide alternative remedies for a fired employee.

But Waggoner said under Garcetti, a court must decide whether the public employee is speaking as a citizen. Lane fails that threshold test because his testimony involved only factual matters learned during his employment and inseparable from his job duties as CITY director, Waggoner said.

Some other courts have conflated the “public concern” prong of the First Amendment test for public employee speech with the “citizen analog” prong, Waggoner said.

Lane's testimony about a state legislator stealing federal funds through a no-show job was undoubtedly speech on a matter of public concern, but he can't satisfy the separate requirement of speaking as a citizen rather than as an employee, Mark Waggoner said, representing the community college president.

Lane's testimony about a state legislator stealing federal funds through a no-show job was undoubtedly speech on a matter of public concern, but he can't satisfy the separate requirement of speaking as a citizen rather than as an employee, Waggoner said.

Distinction Between Fact and Opinion

What if Lane had written a piece for a newspaper disclosing the same information as his trial testimony? Justice Samuel Alito asked. Would the newspaper article be protected speech?

Waggoner replied the article wouldn't be protected if it only related factual matters Lane learned because of his employment rather than a statement of opinion or criticism of a public agency comparable to the employee speech held protected in Pickering.

If a public employee doesn't engage in “citizen speech” under Garcetti, then a court shouldn't proceed to the Pickering test that balances the public employer's interest in efficient service versus the employee's interest in protected speech, Waggoner said.

Justice Elena Kagan asked how Waggoner squares his reading of Garcetti with the Supreme Court's prior statements that public employees often are in the best position to know about official corruption and have First Amendment protection precisely for disclosing information unavailable to an ordinary citizen.

Suppose two public employees know about a no-show employee stealing public funds and one writes a letter to the editor and the other testifies in a criminal trial about the same information, Alito said. Does either engage in First Amendment-protected speech?

The Pickering balancing test doesn't apply in either situation because both employees are relating factual information related to their job duties that isn't protected speech, Waggoner said.

“I've never heard of this distinction, [that] the First Amendment only protects opinion and not facts,” Justice Antonin Scalia told Waggoner.

“It's a longtime precedent of this court” that speech “close to the heart” of the First Amendment involves “expressing viewpoints, engaging in opinion, public debate,” Waggoner replied. Employee speech isn't constitutionally protected if it's solely relaying factual information learned through one's official job duties, he said.

Justice Ruth Bader Ginsburg asked Waggoner for an example of “opinion” speech that would be protected.

“I would suggest something close to the Pickering fact situation where a letter to the editor was written that contained opinion speech, debate speech, critical speech,” Waggoner replied. “And assuming that was based solely on information that the employee had pursuant to their official duties, then that would be protected speech.”

There's “a pretty limited range of speech” that isn't protected under the citizen analog standard in Garcetti, Waggoner said. But Lane's testimony is unprotected speech even though a court subpoena was issued because the court in Garcetti said the “forum is not dispositive” in deciding First Amendment protection, Waggoner said.

Plaintiff's Attorney Pressed on Immunity

The court questioned Singh about why the Eleventh Circuit's qualified immunity ruling shouldn't stand, even if the appeals court arguably misread Supreme Court or circuit precedent.

The justices asked if it's reasonable to expect a public administrator such as Franks, the former college president, to consider decisions from other federal circuits when the Eleventh Circuit has ruled that employees in Lane's situation have no protected First Amendment right.

The Eleventh Circuit may have “really got it wrong,” but isn't it still circuit precedent that governs the issue of whether a constitutional right was clearly established? Roberts asked.

Singh replied that when Supreme Court precedent is clear, a public administrator such as the college president can't reasonably rely on Eleventh Circuit precedent finding no First Amendment protection.

The Justice Department supports a ruling that the First Amendment protects a public employee such as Lane who testifies truthfully under subpoena in a federal criminal trial, but disagrees government employees always speak as “citizens” when they testify under subpoena, regardless of whether such testimony is part of their official job duties, Deputy Solicitor General Ian Gershengorn said.

So you would require the defendant to be a “better analyzer” of Supreme Court precedent than the Eleventh Circuit's judges? Roberts asked.

The cases cited by the Eleventh Circuit are distinguishable from Lane's situation and the circuit court decision in Martinez v. City of Opa-Locka, 971 F.2d 708 (11th Cir. 1992), the case most factually similar to Lane's, supports a finding of First Amendment protection, Singh said.

To gain qualified immunity, Franks would have had to conclude it's not a First Amendment violation to fire an employee for truthful testimony in a criminal trial, Singh said. That's simply not a reasonable conclusion for a public college president to reach under relevant Supreme Court and circuit court decisions, Singh argued.

Protection With Limits, DOJ Attorney Says

Ian Gershengorn, the deputy solicitor general, said the Justice Department as amicus supports a ruling that the First Amendment protects a public employee such as Lane who testifies truthfully under subpoena in a federal criminal trial.

But the DOJ disagrees with amici, including the American Civil Liberties Union and several labor unions, that government employees always speak as “citizens” when they testify under subpoena, regardless of whether such testimony is part of their official job duties, Gershengorn said.

Under Garcetti, he said, a police officer who testifies regularly as part of his job is not necessarily speaking as a citizen rather than an employee. A public employee selected to give representative testimony for his employer under Rule 30(b) of the Federal Rules of Civil Procedure also would not usually have First Amendment protection, Gershengorn said.

The DOJ “strongly urges” the court not to follow the American Civil Liberty Union's suggested broad rule of First Amendment protection for almost all public employees who testify, Gershengorn said.

Rather, the court should follow Garcetti's pronouncement that government employers can't be “disabled” from evaluating the performance of and potentially disciplining employees for speech related to their job duties, even if that speech is court testimony, Gershengorn said.

“What kind of message are we sending to the employee” if he may be fired for truthful testimony at a criminal trial? Sotomayor asked. The Constitution doesn't protect someone at trial for telling the truth? she asked.

The court in Garcetti said no, not if the employee is speaking as part of his job rather than as a citizen, Gershengorn replied.

The Supreme Court doesn't have to remand the case to the Eleventh Circuit, however, because the lower court correctly said qualified immunity bars Lane's requested remedy, Gershengorn said.

Representing the current community college president, Alabama Attorney General Luther J. Strange III agreed Lane stated a First Amendment claim but that qualified immunity applies to bar Section 1983 damages.

To contact the reporter on this story: Kevin P. McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the transcript of the oral argument is available at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-9jlpzu, and of the Eleventh Circuit opinion at http://www.bloomberglaw.com/public/document/Lane_v_Cent_Ala_Cmty_Coll_523_Fed_Appx_709_11th_Cir_2013_Court_Op.

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