Stephen Bergstein
Stephen Bergstein (Handout)

In ruling that the First Amendment prohibits the retaliatory termination of public employees who testify truthfully about public corruption, the Supreme Court in Lane v. Franks1 recently clarified the principles governing the rights of whistleblowers. The unanimous ruling may also undermine settled Second Circuit authority.

While the Supreme Court has long ruled that public employees retain some constitutional rights in the workplace,2 those rights are not co-extensive with those afforded members of the public. As government employers need to efficiently manage their workplaces, the First Amendment only protects employees when they speak out as citizens on matters of public concern.3

‘Garcetti v. Ceballos’

Prior to 2006, in determining whether the plaintiff engaged in protected speech, courts in the Second Circuit primarily focused on whether he engaged in speech on a matter of public concern.4 But in 2006, the Supreme Court ruled in Garcetti v. Ceballos that the First Amendment only protects citizen speech in the workplace, not employee speech. The court stated, “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.”5

In Garcetti, the plaintiff, a deputy district attorney, was disciplined after he drafted a memorandum that recommended dismissing a particular prosecution. Ruling that the plaintiff did not engage in citizen speech, the court stated that the plaintiff’s speech was pursuant to his “official responsibilities.” The court reasoned, “Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do.…The significant point is that the memo was written pursuant to Ceballos’ official duties. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”6

Applying ‘Garcetti’

The Second Circuit has narrowly interpreted Garcetti. In 2010, the Court of Appeals dismissed a case brought by a public school teacher who complained about the school’s failure to properly discipline a student who had thrown books at him in class. Ruling that the plaintiff engaged in employee but not citizen speech, the Second Circuit held in Weintraub v. Board of Education:

We join these circuits and conclude that, under the First Amendment, speech can be “pursuant to” a public employee’s official job duties even though it is not required by, or included in, the employee’s job description, or in response to a request by the employer. In particular, we conclude that Weintraub’s grievance was “pursuant to” his official duties because it was “part-and-parcel of his concerns” about his ability to “properly execute his duties” as a public school teacher—namely, to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning.7

Judge Guido Calabresi dissented in Weintraub, stating that, in too-broadly interpreting Garcetti, the majority’s reasoning “permit[s] readings that would allow retaliation against much speech that seems to me to require protection and to remain protected after Garcetti. This sits uneasily with the Supreme Court’s repeated assertion that ‘the members of a community most likely to have informed and definite opinions’ about an issue must ‘be able to speak out freely on such questions without fear of retaliatory dismissal.’”8

Calabresi interpreted Garcetti to mean that “[a]n employee’s speech is ‘pursuant to official duties’ when the employee is required to make such speech in the course of fulfilling his job duties.”9 Of course, this dissent did not carry the day. Post-Weintraub, courts in the Second Circuit have frequently dismissed First Amendment retaliation cases,10 and few Garcetti-based dismissals have survived appellate review.11

‘Lane v. Franks’

In Lane v. Franks,12 the Supreme Court applied Garcetti for the first time. The plaintiff, Edward Lane, directed a statewide program (CITY) for underprivileged youth at a community college in Alabama. As director, the plaintiff “was responsible for overseeing CITY’s day-to-day operations, hiring and firing employees, and making decisions with respect to the program’s finances.” When the plaintiff reviewed the program’s expenses, he discovered that a state representative, Suzanne Schmitz, was on the payroll even though she had performed no work for the program. Plaintiff’s complaints about this no-show position were ignored. He then testified against Schmitz in the Grand Jury and at her criminal trial, resulting in Schmitz’s conviction for mail fraud and theft. After plaintiff was terminated from his position, he brought a §1983 action claiming that his retaliatory termination violated the First Amendment.

The Eleventh Circuit disagreed, ruling that “even if an employee was not required to make the speech as part of his official duties, he enjoys no First Amendment protection if his speech ‘owes its existence to the employee’s professional responsibilities’ and is a ‘product that the employer himself has commissioned or created.’” Lane acted as an employee and not as a citizen because he acted pursuant to his official duties, when he investigated Schmitz’s employment and terminated her. “That Lane testified about his official activities pursuant to a subpoena and in the litigation context,” the Eleventh Circuit said, “does not bring Lane’s speech within the protection of the First Amendment.”13

A unanimous Supreme Court rejected the Eleventh Circuit’s First Amendment analysis. Applying Garcetti, Justice Sonia Sotomayor held that Lane spoke as a citizen, not as an employee, when he testified. “Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment.”14

The court noted that the legal system relies on truthful testimony and that every citizen has a duty to tell the truth in court.15 “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 to society at large, to tell the truth.”16

In Lane, the Supreme Court clarified its ruling in Garcetti. The Eleventh Circuit stated that “because Lane had learned of the subject matter of his testimony in the course of his employment with CITY, Garcetti requires that his testimony be treated as the speech of an employee rather than that of a citizen.”17 However, the Supreme Court stated,

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 “[t]he 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.18

Second Circuit

How does Lane v. Franks affect plaintiffs in the Second Circuit? The Supreme Court has arguably made it easier for plaintiffs to show that they uttered work-related speech as a citizen and not merely as an employee.19 The court in Lane emphasized that a public employee does not lose First Amendment protections solely because her speech arises from everyday responsibilities. Yet, over the last few years, several Second Circuit cases have affirmed the grant of summary judgment in substantial part because the plaintiff’s speech drew from his job duties.

For example, in Looney v. Black,20 the Second Circuit upheld summary judgment where the plaintiff—who was responsible for enforcing the State Building Code for a municipality—spoke to a town resident about the public health implications of wood burning and smoke discharge. The plaintiff claimed he was voicing his opinion regarding an outside agency’s enforcement of a cease and desist order against town residents. The Second Circuit stated that “where the speech at issue ‘owes its existence to a public employee’s professional responsibilities,’ it can properly be said to have been made pursuant to that party’s official duties.”21

Concluding that “the alleged speech set forth in the complaint was closely related to his work as Building Official,” the court reasoned, “[t]he only sensible way to interpret Looney’s allegations is that he spoke on these issues because he was in an official position that required, or at least allowed, him to do so. It follows that these statements owed their existence to his position as the Building Official. As a consequence, Looney has not adequately alleged that he spoke as a private citizen.”22

In Matthews v. Lynch,23 the plaintiff worked for the Connecticut State Police Internal Affairs unit, responsible for investigating police misconduct. In the course of his duties, the plaintiff “learned that the Connecticut State Police covered up officer misconduct, which included the commission of crimes, driving while intoxicated, and misuse of funds.”24 After the plaintiff disclosed this misconduct to the Attorney General and other public authorities, “superior officers in the Connecticut State Police allegedly retaliated against Appellant for making these disclosures.”

Affirming the Rule 12 dismissal, the Second Circuit reasoned that “appellant’s complaints to outside agencies were ‘part and parcel’ of his ability to properly execute his duties—i.e., enforce the law and effectively combat police misconduct.…Appellant’s additional concession at oral argument that he first reported the misconduct up his chain of command further supports our determination that he was acting pursuant to his employment duties.”25

Similarly, in Carter v. Village of Ocean Beach,26 in affirming summary judgment, the Second Circuit held that “[p]laintiffs’ allegations establish no more than that they reported what they believed to be misconduct by a supervisor up the chain of command—misconduct they knew of only by virtue of their jobs as police officers and which they reported as part-and-parcel of [their] concerns about [their] ability to properly execute [their] duties.…As such, they were not engaging in constitutionally protected speech at any relevant time and cannot make out a First Amendment claim.”27

As the justices typically grant certiorari to resolve inter-circuit disputes and to clarify existing doctrine, every Supreme Court ruling in some way alters the law. The next round of Garcetti cases will tell if Lane v. Franks changes the landscape in the Second Circuit. As the Supreme Court now holds that the First Amendment may protect “speech that simply relates to public employment or concerns information learned in the course of public employment,”28 Justice Sotomayor’s ruling provides ammunition for plaintiffs’ lawyers to argue that prevailing Second Circuit case law has at least in part been repudiated. In response, defendants may argue that little has changed, pointing to the court’s observation that “[t]he 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.”29


1. 2014 U.S. LEXIS 4302 (June 19, 2014).

2. Keyishian v. Board of Regents, 385 U.S. 476, (1967).

3. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

4. See, e.g., Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999).

5. 547 U.S. at 421.

6. Id. at 421-22.

7. 593 F.3d 196, 203 (2d Cir. 2010).

8. Id. at 206.

9. Id. at 208.

10. See, Bergstein, “Garcetti Distinctions Abound in the District Courts,” N.Y.L.J., Dec. 4, 2012.

11. See, Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011) (holding that police officer may proceed with First Amendment lawsuit after refusing to alter truthful report about police misconduct) (the author represented the plaintiff in Jackler); Matthews v. City of New York, 488 Fed. Appx. 532 (2d Cir. 2012) (where police officer spoke out against quota-based ticked practices, court remanded case for discovery to determine “whether Officer Matthews spoke pursuant to his official duties when he voiced the complaints made here in the manner in which he voiced them”).

12. 2014 U.S. LEXIS 4302 (June 19, 2014).

13. Lane v. Franks, 523 Fed. Appx. 709, 711-12 (11th Cir. 2011).

14. 2014 U.S. LEXIS 4302, at *18.

15. Id. at *18-19.

16. Id. at *18.

17. Id. at *19 (citing 523 Fed. Appx. at 712).

18. Id. at *20. Although the Supreme Court ruled that Lane had engaged in protected speech, it also found that the individual defendant was entitled to qualified immunity because it was not clearly established that plaintiff enjoyed the First Amendment right to testify without retaliation. Id. at *26-30.

19. At a minimum, Lane v. Franks probably repudiates the Second Circuit’s summary order in Kiehle v. County of Cortland, 486 Fed. Appx. 222 (2d Cir. 2012), which held that the First Amendment did not prevent the retaliatory termination of a DSS caseworker who was fired after voluntarily testifying at a Family Court hearing about facts “she obtained during the course of her public employment.” Id. at 223. (The author represented the plaintiff in Kiehle).

20. 702 F.3d 201 (2d Cir. 2012).

21. Id. at 710-11.

22. Id. at 712-13.

23. 483 Fed. Appx. 624 (2d Cir. 2012).

24. Id. at 626.

25. Id.

26. 415 Fed. Appx. 290 (2d Cir. 2011).

27. Id. at 293.

28. Id. at *20.

29. Id.