Unanimous Supreme Court Revives First Amendment Retaliation Claim Based on Plaintiff’s Prior Testimony in Public Corruption Criminal Proceedings

This morning, a unanimous U.S. Supreme Court reversed summary judgment entered in favor of a current community college president on a First Amendment retaliation claim brought by a program director who had been terminated following his subpoenaed testimony in a criminal proceeding against a former employee.  Lane v. Franks. No. 13-483 (6-19-14).   The Supreme Court held that the First Amendment protects a public employee who provided truthful sworn testimony, compelled by sub­poena, outside the course of his ordinary job responsibilities.  The plaintiff’s testimony in a criminal trial was clearly a matter of public concern.  “Truthful testimony under oath by a public employee outside 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.”

According to the Court’s opinion, after the plaintiff terminated a state representative on his department’s payroll for failing to report to work, she was investigated by the FBI and ultimately sentenced to 30 months in prison for mail fraud and theft.  The plaintiff had been subpoenaed to testify before a grand jury and two jury trials about why he fired the state legislator.  After her conviction, he recommended that the college lay off some of his program’s employees to save money.  The college then laid off him and 29 employees, but then reinstated all but him and another employee.    Nine months later, the college eliminated the entire program and the plaintiff filed suit under §1983, alleging that he had been terminated in retaliation for testifying under subpoena in the criminal proceedings in violation of the First Amendment.  He sought damages from the former president and reinstatement from his successor.

The District Court found the former college president had qualified immunity to the extent sued in his individual capacity because it had not been not clear that the plaintiff’s trial testimony was protected by the First Amendment in that it was related to his official duties as program director.   The Court also found that the official capacity claims against the successor college president were barred by the Eleventh Amendment. The Eleventh Circuit found that the plaintiff’s testimony was not protected by the First Amendment because he was testifying as an employee and not an individual.

The Supreme Court reversed.  In doing so, it reiterated that a public employee’s First Amendment rights are balanced against his employer’s interest in efficient services.  As the Court explained in Garcetti v. Ceballos, 547 U. S. 410, 421, the Court will examine whether the speech was a matter of public concern and whether the government had a legitimate reason to treat the employee differently than a 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.”

The Court found the trial testimony in this case was “clearly” a matter of public concern.  “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 Court rejected the argument that the testimony lost constitutional protection because it related to the plaintiff’s official duties as program director.  “In other words, the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech. The critical question under Garcetti is whether the speech a tissue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”  

It was also clearly a matter of public concern because it related to public corruption.   The reason for such a clear rule is obvious based on the facts of this case:

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.

Nonetheless, “[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.”   A court must still consider the employer’s countervailing interest.   However, in this case, the college could not articulate any governmental interest in terminating the plaintiff’s employment or treating him differently than a member of the general public.  There was no assertion, for instance, that his testimony had been false, or that he had unnecessarily revealed confidential or sensitive information.

That being said, the Court agreed that the law had been unclear about the legality of terminating the plaintiff and, therefore, affirmed summary judgment on the qualified immunity claims.

The Eleventh Circuit had declined to consider the Eleventh Amendment defense raised by the successor college president because it had erroneously concluded that the plaintiff had not proven unlawful retaliation.   The Supreme Court reversed.

In concurring opinions, three justices pointed out that this decision only applies when the plaintiff is not required to testify as part of his official duties.  The result could be different if the public employee were required as part of their jobs to testify in court proceedings, like a police officer, forensic scientist, etc.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.