Lane v. Franks: Fired for testifying under subpoena

Public employee claims discharge was for compelled court testimony.Lane v. Franks is the big first amendment employment case for this year. The US Supreme Court heard oral arguments on April 28. [Transcript]

Facts: Lane, as part of his community college job, uncovered evidence that a legislator was engaged in some corrupt activities. Later, Lane was subpoenaed to testify in a federal criminal trial involving the legislator. When Lane got laid off or terminated from his job, he sued Franks, president of the college, claiming he lost his job because he testified. This, he claimed, was retaliation in violation of the 1st amendment.

Legal background:Garcetti v. Ceballos, 547 US 410 (2006), is famous for holding that a public employee who speaks or writes as part of that employee's job duties enjoys no 1st amendment protection. The employer can fire that employee for speaking or writing. The reasoning is that the employee was not speaking or writing as a citizen.

Speaking as a citizen?

One issue in Lane v. Franks is whether a public employer is free to fire an employee for giving truthful subpoenaed testimony. The 11th Circuit said yes. Lane v. Central Alabama Community College (11th Cir 07/24/2013) (unpublished). It's important to note that the content of Lane's testimony was all derived out of the performance of his job. Yet testifying was not one of his job duties. So that's the twist in this case. Testifying was not a job duty, but the content of the testimony was all about what Lane discovered as part of his job duties. The gut issue here is whether Lane was speaking as a citizen or as an employee.

It seems pretty simple to me. When an employee is subpoenaed to testify in criminal court, that employee is speaking as a citizen. (Police officers are possibly a different question because testifying is party of an officer's job duties.)

Qualified immunity?

Another issue is whether the defendant is entitled to qualified immunity. This turns on whether Lane's first amendment right (assuming it exists) was clearly established at the time he lost his job. Well, it most certainly was not.


Prediction: On the first amendment issue, Lane was speaking as a citizen, so he gets first amendment protection. On the qualified immunity issue, the law was not clearly established, so Lane loses after all. It's possible the Court will not even decide the "main" first amendment issue if Lane is going to lose on the immunity issue. Just my prediction, folks. We'll see in the next few months.

[For a list of current employment law cases, see Supreme Court Watch.]