This week, the Supreme Court re-visited whether the First Amendment protects public employees from job retaliation when they offer testimony about corruption and government misconduct. It stems from the case surrounding Edward Lane who was fired in 2008 because he testified truthfully on how an Alabama state lawmaker was a no-show employee and was being paid by taxpayers to work after he performed an audit of the program he headed. A decision is expected by June.
Back in 2006, Lane oversaw an alternative to incarceration program for juvenile offenders that was run out of the Central Alabama Community College and received public funding. Once Lane testified about the corruption, he was fired by the college’s president. According to the L.A. Times, last year, Lane lost his free-speech lawsuit against the college president who had dismissed him after the U.S. 11th Circuit Court of Appeals ruled that under the 2006 Supreme Court precedent, which Lane was not protected.
According to al.com, Lane had testified in a case against Suzanne Schmitz, the Alabama politician, who was accused of fraudulently arranging a taxpayer-paid salary with the program led by Lane for little, or virtually, no work.
According to the article in the L.A. Times, the justices struggled over whether that protection should automatically cover all public workers, even police officials or criminal investigators whose job duties require them to testify in court about specific cases. Although teachers and other public employees are free to speak as citizens, the high court ruled, the First Amendment does not protect them if they learn something on the job and reveal it to the public over the objections of their employer.
Most of the justices appeared to side with Lane’s view that court testimony revealing official misconduct should be constitutionally protected even if it covers facts a government employee learned at work.
“Well, what is he supposed to do?” Chief Justice John G. Roberts Jr. asked an attorney defending the college president. “He gets a subpoena” from the prosecutor and has to tell the truth in court.
“Mr. Chief Justice, we would never suggest anybody not comply with a subpoena and testify truthfully,” said Mark Waggoner, a lawyer from Birmingham.
“But you are suggesting he can be fired if he does it,” Roberts replied.
Justice Ruth Bader Ginsburg said testifying in court “was not part of the job description of Lane,” so he was speaking more as a citizen.
Ian Gershengorn, deputy solicitor general arguing on behalf of the Obama administration, argued that Lane’s testimony was protected by the First Amendment, but contended the protection shouldn’t apply to workers whose jobs require them to perform investigations and testify in legal proceedings.