Supreme court building in Washington DC, USA.
U.S. Supreme Court building in Washington, D.C. ()

In this term, like so many others, the U.S. Supreme Court focused considerable attention on the First Amendment. The court heard oral arguments in April in two such cases—one concerning the protections afforded a public employee while testifying under subpoena, and one concerning the ability of individuals to challenge speech-restrictive campaign laws. Both of these cases present the court with the difficult task of applying longstanding doctrine to new and perplexing problems.

Lane v. Franks

In Lane v. Franks, No. 13­483, the Supreme Court is asked to determine whether and to what extent a public employee’s subpoenaed testimony is protected by the First Amendment. Edward Lane served as the director of a program for at-risk youth at Central Alabama Community College (CACC). As part of his official duties, Lane audited the program’s finances. In so doing, Lane discovered that Suzanne Schmitz, an Alabama state legislator, was fraudulently arranging and concealing a “no-show” job for herself at the program. The United States prosecuted Schmitz and subpoenaed Lane to testify at grand jury proceedings and at two criminal trials. Pursuant to that subpoena, Lane testified about his audit findings. A jury convicted Schmitz of several counts of mail fraud and fraud. Shortly thereafter, the president of CACC, respondent Steve Franks, fired Lane. Lane filed a lawsuit alleging that CACC terminated him in retaliation for his testimony in violation of the First Amendment.

The Supreme Court held in the 2006 case Garcetti v. Ceballos, 547 U.S. 410 (2006), that public employees may not be terminated for speech that is undertaken “so long as employees are speaking as citizens about matters of public concern.” However, where an employee speaks pursuant to a subpoena, where that employee’s job duties do not encompass such testimony, the court has not spoken about whether the First Amendment precludes the employer from disciplining the employee for such speech.

Franks argued, and the U.S. Court of Appeals for the Eleventh Circuit agreed, that he was protected from suit on the basis of qualified immunity. In part, that argument turned on the contention that Lane’s testimony was not protected by the First Amendment because it “touched only on acts he performed as part of his official duties.”

The Eleventh Circuit, in reversing the district court’s decision on the question of qualified immunity, endorsed a line of case law within that circuit that had adopted an expansive reading of the public-employee exception. The Eleventh Circuit had decided several cases—contrary to decisions in other circuits—in which it suggested that the government could terminate an employee because of his testimony about something he learned during his employment, even if that testimony itself was not part of the employee’s official job duties.

After oral argument in April, it appears that the court is prepared to reverse the Eleventh Circuit’s decision. For example, when counsel for Franks insisted to the court that they “would never suggest that anybody not comply with a subpoena,” Chief Justice John G. Roberts responded: “But you are suggesting he can be fired if he does.” Justice Sonia Sotomayor echoed that point when she queried: “You mean the Constitution doesn’t protect someone in a trial from telling the truth?”

In the process of reversing the Eleventh Circuit, the court will likely tighten the restrictions on a government employer’s ability to terminate an employee on the basis of subpoenaed testimony. Those whose job functions explicitly call for such testimony—such as police officers—would likely still not receive such First Amendment protection. It will not be enough, however, simply that an employee learns about a matter of public concern through his or her job duties. Rather, public, subpoenaed testimony on such matters will likely be deemed protected speech by a private citizen.

Lane’s ability to recover damages, however, is another question altogether. Qualified immunity entitles a government employee to protection unless he or she violated a constitutional right that is clearly established at the time it is violated. The court will need to determine—or remand for further consideration—whether the relevant Eleventh Circuit precedent is enough to muddy the legal waters and shield the respondents from liability.

Susan B. Anthony List v. Driehaus

In Susan B. Anthony List v. Driehaus, No. 13-193, threshold questions of standing and ripeness may prevent the court’s consideration of any substantive First Amendment issues. The case concerns an Ohio law prohibiting the making of a “false statement concerning the voting record of a candidate or public official” during an election. The Susan B. Anthony (SBA) List, a pro-life advocacy group, planned on erecting a billboard during the weeks leading up to the 2010 midterm elections accusing then-Congressman Steven Driehaus of voting for “taxpayer-funded abortion.” Driehaus—a pro-life Democrat who voted for the Affordable Care Act only after President Obama issued an executive order prohibiting the use of taxpayer dollars for abortions—filed a complaint with the Ohio Elections Commission, the administrative body charged with enforcing the state’s false statements laws.

That complaint was referred to a three-person administrative panel for expedited review. The panel voted 2-1 to find that there was probable cause to refer to the complaint to the full commission. The SBA List filed suit in federal court seeking declaratory and injunctive relief. Citing principles of abstention, the federal court stayed proceedings to await the result of the commission hearing. By that time, the election had come and gone, and Driehaus had lost his race. Driehaus agreed to withdraw his complaint, and the commission terminated its proceedings.

The SBA List, however, continued to pursue its action in federal court, arguing that the Ohio statute was unconstitutional under the First Amendment, and expressing worry that such proceedings caused them harm and could chill their future advocacy. The district court dismissed the suit, reasoning that it was no longer ripe, and the Sixth Circuit affirmed. Noting that in the context of the First Amendment, the question of ripeness usually turns on whether the speaker faces an imminent threat of prosecution, the lower courts reasoned that Driehaus’ loss of the House seat, and his discontinuance of the administrative action, left no question fit for judicial review. In so doing, the courts rejected the SBA List’s ripeness argument that the commission may undertake substantially similar action in the future.

Although the Supreme Court agreed only to review the question of ripeness, the oral argument in April demonstrates the extent to which that threshold issue is intertwined with the underlying, substantive First Amendment concerns. As counsel for the SBA List argued, “If the enforcement agency”—which both the petitioners and several of the justices frequently referred to with the dystopian moniker “Ministry of Truth”—”has previously announced that your speech probably violates the law at issue, then you have a credible threat of future enforcement if you repeat that speech.” Counsel for respondents argued that, without a “specific threat,” Article III’s case or controversy requirement simply could not be met.

The petitioner, though, pointed out the constitutional difficulty with such a conclusion. Given the nature of the law at issue, and the fact that almost all election-related speech occurs within a very short period of time leading up to an election, any speaker who would attempt to challenge the Ohio law would almost certainly lose standing to do so once the election at issue was over. “So you have a system,” Justice Samuel Alito suggested, “that goes on and on, year after year, where arguably there’s a great chilling of … core First Amendment speech, and yet … you can’t get into federal court” to challenge it. As Justice Elena Kagan noted, the respondents themselves “expresse[d] grave concern about the constitutionality of the statute” yet were unable to present a viable scenario in which they would allow for a court challenge.

Given the justices’—and, indeed, the parties’—concerns that core First Amendment rights may be violated by the Ohio statute, it would not be surprising to see the court fashion a rule that would allow the SBA List’s federal-court challenge to proceed along narrow grounds.

Stephen A. Miller practices in the commercial litigation group at Cozen O’Connor’s Philadelphia office. Prior to joining Cozen O’Connor, he clerked for U.S. Supreme Court Justice Antonin Scalia and served as a federal prosecutor for nine years in the Southern District of New York and the Eastern District of Pennsylvania.

Jordan S. Fox also practices in the commercial litigation group at the firm’s Philadelphia office. He is a graduate of Harvard University and the University of Virginia School of Law.