SCOTUS takes on 1st amendment retaliation case

Public employee claims discharge was for compelled court testimony.Lane v. Franks - certiorari granted by the US Supreme Court on January 17 - will be one of the more interesting cases of this year.

It raises an issue left undecided in Garcetti v. Ceballos, 547 US 410 (2006). Garcetti 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.

The 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 Lane v. Central Alabama Community College (11th Cir 07/24/2013) (unpublished).

Lane, as part of his community college job, uncovered evidence that a legislator was engaged in some corrupt activities. Later, Lane testified under subpoena 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 retaliation in violation of the 1st amendment.

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 a different question because testifying is party of an officer's job duties.)

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