Supreme Court Reels In Garcetti Rule

No rules of constitutional law arising out of the public sector workplace have been as impacted by a Supreme Court decision as the free speech rights of public employees were by the Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006). In Garcetti, 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.”

In the eight years after Garcetti, courts across the country have upheld the terminations of public safety employees for speaking out about matters related to the job. Law enforcement officers and firefighters were found not to have free speech protections when they testified truthfully in internal affairs investigations, when they wrote memos about safety hazards, when they reported the misconduct of other employees, and in many other settings where the employee’s speech could be said to arise out of their jobs.

In June 2014, in a case known as Lane v. Franks, the Court took a large step towards reeling in the Garcetti rule, widening at least a bit the amount of First Amendment protection given to employee speech about the job. The case started in 2006, when the Central Alabama Community College hired Edward Lane to be the Director of Community Intensive Training for Youth (CITY), a statewide program for underprivileged youth. The College hired Lane on a probationary basis. In his capacity as Director, Lane was responsible for overseeing CITY’s day-to-day operations, hiring and firing employees, and making decisions with respect to the program’s finances.

CITY faced significant financial difficulties. That prompted Lane to conduct a comprehensive audit of the program’s expenses. The audit revealed that Suzanne Schmitz, an Alabama State Representative on CITY’s payroll, had not been reporting to her CITY office. After unfruitful discussions with Schmitz, Lane shared his finding with the College’s president and its attorney. They warned him that firing Schmitz could have negative repercussions for him and the College.

Lane nonetheless contacted Schmitz again and instructed her to show up to the Huntsville office to serve as a counselor. Schmitz refused; she responded that she wished to “continue to serve the CITY program in the same manner as she had in the past.” Lane fired her shortly thereafter. Schmitz told another CITY employee that she intended to get Lane for firing her. She also said that if Lane ever requested money from the state legislature for the program, she would tell him, “You’re fired.”

Schmitz’ termination drew the attention of many, including the FBI, which initiated an investigation into Schmitz’ employment with CITY. In November 2006, Lane testified before a federal grand jury about his reasons for firing Schmitz. In January 2008, the grand jury indicted Schmitz on four counts of mail fraud and four counts of theft concerning a program receiving federal funds. Schmitz’ trial, which garnered extensive press coverage, commenced in August 2008. Lane testified, under subpoena, regarding the events that led to his terminating Schmitz. After one mistrial, a jury convicted Schmitz on three counts of mail fraud and four counts of theft concerning a program receiving federal funds. The District Court sentenced her to 30 months in prison and ordered her to pay $177,251.82 in restitution and forfeiture.

Meanwhile, CITY continued to experience considerable budget shortfalls. In November 2008, Lane began reporting to Steve Franks, who had become president of the College in January 2008. Lane recommended that Franks consider layoffs to address the financial difficulties. Franks initially laid off 29 employees, including Lane, but later rescinded the layoffs of all but Lane and another employee.

Lane sued Franks, alleging that Franks had violated the First Amendment by firing him in retaliation for his testimony against Schmitz. When lower courts dismissed the lawsuit on the theory that Lane’s “speech” – his testimony at trial – was part of his job and thus unprotected under Garcetti, the stage was set for the Supreme Court.

In reviving the lawsuit, the Court draw a crucial distinction. Garcetti, it found, was only meant to apply to speech made solely as part of the job duties of a public employee, not merely speech by a public employee about his/her job. Lower courts, the Court said, had been reading Garcetti too expansively: “But Garcetti said nothing about speech that simply relates to public employment or concerns information learned in the course of public employment. The Garcetti Court made explicit that its holding did not turn on the fact that the memo at issue concerned the subject matter of the prosecutor’s employment, because the First Amendment protects some expressions related to the speaker’s job. 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 at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”

The Court stressed the community value of speech by public employees about their jobs: “The importance of public employee speech is especially evident in the context of this case: a public corruption scandal. The United States, for example, represents that because the more than 1,000 prosecutions for federal corruption offenses that are brought in a typical year…often depend on evidence about activities that government officials undertook while in office, those prosecutions often require testimony from other government employees. 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. Applying these principles, it is clear that Lane’s sworn testimony is speech as a citizen.”

Precisely how far the Lane case opens up the door will no doubt be the subject of intense litigation in upcoming years. At a minimum, though, it is clear that giving truthful testimony will now be considered protected speech under the First Amendment (some lower courts had held that Garcetti meant that truthful sworn testimony in internal affairs investigations was not protected by the First Amendment). It also seems likely that unless the employee’s job duties specifically involve the making of the type of speech in question, Garcetti will no longer deem the speech unprotected under the First Amendment.

Lane v. Franks, 2014 WL 2765285 (S. Ct. 2014).