Justice Sonia Sotomayor found a way to a unanimous decision.

Justices Side With Free Speech and Common Sense

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Since 1968, when the U.S. Supreme Court first announced some protection for government employees' free-speech rights against the risk of retaliation, the trend in its decisions has been to cabin and limit that right almost to nothingness. Today the court gently reversed that trend. Its holding -- that a government employee can't be sanctioned for testimony given in court outside his job responsibilities -- sounds intuitive and obvious. But under past case law, it wasn't. The decision is therefore not only a victory for common sense, but also a modest win for the First Amendment in the government workplace.

The case, Lane v. Franks, involved an employee of Central Alabama Community College who was hired to run a youth job training initiative and discovered, among other problems, that a state legislator held a no-show job in the program. The employee, Edward Lane, naively told the legislator that she had better turn up for work or he would have to fire her. She refused. The president of the college told Lane not to rock the boat, but Lane fired the legislator anyway. He then testified to the grand jury and at two trials that resulted in the legislator's conviction. For his pains, the college fired Lane.

To any reasonable observer, it would seem absurd that the college could get away with this. Yet the district court and the court of appeals both rejected Lane's subsequent claims against the college out of hand. Remarkably, their decisions were not obviously wrong in the light of existing Supreme Court precedent.

A series of cases culminating in the egregious 2006 decision of Garcetti v. Ceballos, the Supreme Court held that when public employees make statements "pursuant to their official duties," they're acting as employees, not citizens -- and are therefore not entitled to the protection of the First Amendment. The astonishing facts in the Garcetti case involved a deputy district attorney in Los Angeles who suspected a police officer of falsifying an affidavit. He wrote about his suspicions in a memo to his superiors, and was subsequently transferred in retaliation after the prosecution went forward anyway. The Supreme Court said that the deputy district attorney was not acting as a citizen when he wrote the memo, but as an employee -- and therefore the speech was unprotected from government retaliation under the First Amendment.

Applying the Garcetti precedent literally is what led lower courts to decide against Edward Lane. His testimony against the state legislator arose from information he gleaned as part of his official duties working for the college, a state actor.

To reach a different conclusion, the Supreme Court had to differentiate the facts of the Garcetti case. In an opinion by Justice Sonia Sotomayor, the court held that Lane's testimony, unlike that of the deputy district attorney in the 2006 case, was speech he made as a citizen on a matter of public concern. The punch line was the court's statement that testimony is always a "quintessential example of speech as a citizen for simple reason: anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth." Public corruption, the court said, is a matter of public concern. Sotomayor's opinion also made it explicit that Lane was not speaking as a public official simply because he learned about the underlying facts in the course of doing his job.

One issue that the justices raised during oral argument in the case was what to do about police officers who testify in the course of their employment. Would their testimony be protected against sanction by their employers? Sotomayor's opinion obliquely addressed the issue by saying that, under the Garcetti case, the "critical question" is whether the speech in question is "ordinarily" within the scope of the employee's duties.

This language leaves room for courts to treat police officers differently from Lane. It's therefore theoretically still possible a police officer could be demoted for testifying too truthfully in court and failing to get a conviction, because testifying might be seen as "ordinarily" part of the job. This would be a preposterous ruling -- but Sotomayor no doubt needed to carve out the issue to keep a majority.

Justice Samuel Alito, joined by Justices Clarence Thomas and Justice Antonin Scalia, wrote separately to emphasize that the case did not resolve the question of police officers, crime scene analysts or laboratory technicians, who testify in the ordinary course of the jobs. The three of them, at least, don't think it would be so bad to sanction public officials for their true testimony.

Overall, then, the case matters not just because it reached the right result. It matters because, albeit in a limited way, it stops the trend toward allowing the government to sanction employees in violation of their free-speech rights in a greater and greater range of cases. True, the court did not overrule Garcetti. But an employee who testifies at least now has greater free-speech protection than he or she did before. I wouldn't call it a red letter day for the First Amendment. But modest victories are good things, too.

Corrects to reflect reassignment of deputy district attorney in fourth paragraph of article published June 19.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net