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Supreme Court: First Amendment Protects Public Employees Who Give Whistleblower Testimony

Justice Sonia Sotomayor, who wrote the Supreme Court decision

The United States Supreme Court ruled that the First Amendment protects public employees who provide testimony during corruption trials from job retaliation, such as being fired.

The case, Lane v. Franks, involves Edward Lane, who according to NPR was “hired in 2006 to head a program for juvenile offenders” at Central Alabama Community College that provided “counseling and education as an alternative to incarceration.” The program “received substantial federal funds.”

Lane conducted an audit and discovered that one of the program’s “best-paid employees, a state representative named Suzanne Schmitz, was not showing up for work.” He met with her and was told that he shouldn’t “tangle” with her because she had influence. He refused to be complicit and fired Schmitz.

The FBI investigated “public corruption in Alabama.” Lane was subpoenaed to testify before a grand jury and at Schmitz’s two trials. She was convicted of “fraudulently obtaining $177,000 in public funds.” Yet, Lane never received any reward for his role. He was, instead, fired and decided to sue. He believed his termination was retaliation for testifying and violated his First Amendment rights.

Justice Sonia Sotomayor wrote the Supreme Court decision, which declared that Lane’s testimony had been outside the scope of his “ordinary duties” as an employee. He had given testimony “as a citizen on a matter of public concern”—a “public program and misuse of state funds.”

He was compelled to testify by a subpoena. “Anyone who testifies in court,” Sotomayor wrote, “bears an obligation, to the court and society at large, to tell the truth.”

Sotomayor further asserted:

…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 “[t]he more than 1000 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.” Brief for United States as Amicus Curiae 20. 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… [emphasis added]

Yet, the court did not find that Franks should be held responsible for firing Lane. They decided he was entitled to “qualified immunity” as an individual because at the time that he made the decision it was not “beyond debate” whether Franks could fire him for his speech.

Justice Department attorneys under President Barack Obama had argued against First Amendment protection, even at one point suggesting that a police department would be within their rights to fire an officer who responded to a subpoena and testified about a search warrant in a court.

The Obama administration’s position, if the Supreme Court had accepted it, would have essentially encouraged employees to not comply with subpoenas if they wanted to keep their jobs.

What the government wanted was broad authority, which they could have used to crackdown on whistleblowers.

The fact that the Supreme Court settled the question of whether a public employee can expose corruption in court, if subpoenaed, and enjoy the protection of the First Amendment may seem like a small victory. However, for those who believe in the truth it is, nonetheless, a victory.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."