Sonia Sotomayor.
Sonia Sotomayor. (Photo: Diego M. Radzinschi/NLJ)

The First Amendment protects public employees who testify in court outside the scope of their job responsibilities, the U.S. Supreme Court ruled on Thursday.

Lane v. Franks asked the justices to examine their divided 2006 decision in Garcetti v. Ceballos. That decision, often criticized by First Amendment and employment law scholars, held that the First Amendment protects public employees only when they are speaking as citizens on matters of public concern, and not when their statements are rooted in their official job duties.

Justice Sonia Sotomayor said in the court’s unanimous decision that the fact that a public employee testified in court about information he learned through his job didn’t transform the testimony from “citizen speech” to “employee speech.”

“Sworn testimony in judicial proceedings is a quintessential example of speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth,” Sotomayor wrote. “That independent obligation renders sworn testimony speech as a citizen and sets it apart from speech made purely in the capacity of an employee.”

The “critical question,” the court said, was whether the public employee’s speech—in this case, sworn testimony in court—fell “within the scope” of their duties. In the case of petitioner Edward Lane, the director of an Alabama community college’s at-risk youth program, that wasn’t the case.

The high court added that the “content of Lane’s testimony—corruption in a public
program and misuse of state funds—obviously involves a matter of significant public concern.”

Justice Clarence Thomas wrote a two-page concurring opinion noting that the court was not addressing how the First Amendment applied to public employees who testify in court as part of their regular job responsibilities, such as police officers or crime scene technicians, or others who testify as representatives of their employers.

“The court properly leaves the constitutional questions raised by these scenarios for another day,” wrote Thomas, joined by justices Antonin Scalia and Samuel Alito Jr.

Lane was fired by the college’s president, Steve Franks, after testifying under subpoena at the fraud trial of a state legislator who, Lane discovered, was a ghost employee on his program’s payroll. After failing to persuade the legislator to come to work, Lane terminated her. She vowed to retaliate and have him fired if his program ever sought state funding.

After testifying at the first of two trials of the legislator, Lane lost his job and sued, claiming retaliation for his testimony. The U.S. Court of Appeals for the Eleventh Circuit ruled against Lane, holding that he did not testify as a “citizen” on a matter of public concern, and his employer was entitled to qualified immunity.

Although the Supreme Court found Lane was entitled to First Amendment protection, it found that Franks was still entitled to qualified immunity as an individual. When Franks fired Lane, the high court said he could “reasonably have believed” that he was allowed to fire an employee on account of testimony the employee gave under oath, based on Eleventh Circuit precedent at the time.

During arguments at the end of April, Lane’s counsel, Tejinder Singh of Washington’s Goldstein & Russell, told the Supreme Court that his client’s responsibility was to manage the staff in his program. He was never expected, as part of his duties, to testify in court.

“I think the fact of a subpoena is strong evidence that when an employee testifies he is not doing so because it’s his job to do so,” he said. “There is a separate and very strong obligation.”

The Obama administration and the state of Alabama supported Lane’s First Amendment argument, but disagreed with him on the qualified-immunity issue. The Eleventh Circuit, they had argued, was interpreting its own precedents in ruling that employees could not bring First Amendment challenges to adverse job actions resulting from subpoenaed testimony, and employers were entitled to rely on the law of their circuit.

Mark Waggoner of the Birmingham office of Hand Arendall, counsel to Lane’s employer, contended there was no First Amendment protection for Lane’s testimony because the testimony was pursuant to his official duties.

Contact Zoe Tillman at and Marcia Coyle at