David L. Hudson, Jr.: Court limits Garcetti – at least a little

  The U.S. Supreme Court recently ruled 9-0 in Lane v. Franks that a former employee of a community college in Alabama had a First Amendment right to testify in court under subpoena without facing retaliation.

  Edward Lane alleged that he was retaliated against after he testified in the criminal case of a former state representative he had worked with when he was running a program for disadvantaged youths for Central Alabama Community College.

  The lower courts had rejected Lane’s First Amendment claims based on the U.S. Supreme Court’s ruling in Garcetti v. Ceballos (2006). In Garcetti the Court created a categorical rule – that when public employees make statements in the course of their official job duties, they have no First Amendment protection at all.

  Lane’s speech, the lower courts reasoned, fell within the rule of Garcetti because his testimony related to information he learned and activities he performed while on his job. The Supreme Court, in an opinion by Justice Sonia Sotomayor, rejected that argument, pointing out that it was not part of Lane’s official job duties to testify in court. She also reasoned that giving testimony in court is what a citizen is supposed to do.

  Other aspects of the Court’s ruling also are encouraging from a First Amendment standpoint.

  Sotomayor repeatedly cited the Court’s seminal public-employee decision in Pickering v. Bd. of Educ. (1968), in which the Court ruled that a public school teacher had a First Amendment right to write a letter to the editor criticizing the school board.

  Sotomayor emphasized what Justice Thurgood Marshall did in Pickering – that people have a very strong interest in hearing what public employees have to say because public employees are uniquely qualified to offer perspective on key issues. She also applied the Pickering balancing test of weighing the employee’s right to free speech against the employer’s interests in workplace efficiency and found that in the Lane case, “the employer’s side of the Pickering scale is entirely empty.”

  The ruling wasn’t a total victory for free speech. The Court reasoned that the school official-defendant was entitled to qualified immunity because it was not clearly established that the official couldn’t punish Lane for such speech. Furthermore, a concurring opinion seemed to want to limit protection to employees who don’t testify regularly in court.

  But the Garcetti rule has had such a palpably negative impact on public employees’ free-speech claims that any relief from its categorical reach is a welcome development.

  About the author: David L. Hudson Jr. is an expert in First Amendment issues who writes for Firstamendmentcenter.org and for other publications.

  This article was published by the First Amendment Center.