Asked and Answered

 Brian Schwartz on Lane v Franks

By Steve Thorpe

Providing truthful, sworn testimony outside the course of ordinary job duties is First Amendment speech for the purposes of retaliation lawsuits, the U.S. Supreme Court ruled recently in Lane v Franks. The ruling prohibits a public employer from retaliating against an employee who testifies pursuant to a subpoena based on information the employee knows about because of his or her public employment. Brian Schwartz is principal at Miller Canfield and represents management in various aspects of labor and employment counseling and litigation. His practice also focuses on defending class-action lawsuits involving retiree health benefit disputes and employment discrimination. He also has been involved in defending race, gender and disability discrimination claims.


Thorpe: Give us the rough framework of this case.

Schwartz: The plaintiff, Edward Lane, was the director of a program for underprivileged youth operated by a community college. As part of his job duties, Lane conducted an audit of the program’s finances and discovered that an employee — who also was an Alabama state representative — had not been reporting for work. After unsuccessful efforts to have the employee show up for work, Lane terminated the employee. There was also evidence in the record that the state representative informed others that she would “get back” at Lane. Lane testified during the employee’s two criminal trials and was later terminated. The Supreme Court considered whether Lane’s in-court speech — which was not made pursuant to his official job duties — was protected by the First Amendment.

 The court ruled that truthful testimony under oath by a public employee was citizen speech. Next, the court concluded that the speech was on a matter of public concern because it involved testimony regarding corruption in a public program. Applying a balancing test, the court found no governmental interest that outweighed the employee’s First Amendment interest. Ultimately, the court found that the president of the community college was entitled to qualified immunity in his individual capacity because the law was not clear as to whether Lane could be terminated for testifying under oath. The decision did not resolve claims brought against the president in his official capacity.

Thorpe: The high court was unanimous in reversing the Eleventh Circuit. Were you surprised there was no dissent?

Schwartz: Not really. Many assume that the current Supreme Court will divide along ideological lines in employment law cases. That was the case in Garcetti v. Ceballos, a 5-4 decision that was decided before Justices Kagan and Sotomayor were confirmed. Lane, however, fit outside the framework set forth in Garcetti. Because the speech in Lane was not made pursuant to the employee’s official job duties, it was relatively easy for the Court to conclude that it was protected by the First Amendment. Justice Thomas’s short concurrence reflects how analytically simple it was for Court to reach a unanimous decision.

Thorpe: The court ruled that truthful testimony under oath by a public employee was citizen speech. Explain that.

Schwartz: Whether a public employee is speaking as a citizen is the first inquiry in determining whether the employee’s speech is protected by the First Amendment. An employee that is not speaking as a citizen on a matter of public concern is not engaged in First Amendment protected activity. The Court concluded that the speech at issue in Lane — which was not made pursuant to the employee’s official job duties — was citizen speech even though the testimony related to information learned during the employee’s public employment.  

Thorpe: How does this case relate to Garcetti v Ceballos?

Schwartz: Garcetti held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.” Here, because Lane’s official duties did not require that he provide truthful sworn testimony in criminal cases, the Court distinguished Garcetti and concluded that the speech was protected. If Lane was terminated because of his citizen speech, that action would violate his First Amendment rights. Notably, the Court expressly declined to address whether truthful sworn testimony constitutes citizen speech that is protected by the First Amendment if testimony is given within the course of the employee’s ordinary job duties. 

Thorpe: Justice Sonia Sotomayor wrote for the court, “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.” What red flags might this send up for employers?

Schwartz: Plaintiff’s attorneys may attempt to seize on this statement as a signal that the Court is endorsing broad protection for whistleblowers. It is important to recognize, however, that this statement was made in the context of a First Amendment analysis. The Court was not interpreting a statutory scheme or a specific federal or state whistleblower provision. Nonetheless, employers should tread carefully when taking adverse employment actions to avoid providing employees with viable retaliation claims.

Thorpe: This ruling addresses First Amendment rights of public employers and doesn’t apply to private sector employers. But how might they be affected?

Schwartz: Many anti-discrimination and anti-harassment statutes protect employees from retaliation if they have testified, assisted or participated in an investigation regarding a claim protected by the statute. For example, Michigan’s Elliott-Larsen Civil Rights Act provides such protection for employees testify in support of a co-worker’s discrimination claim. This case is a reminder to private employers that taking an adverse employment action against an employee who has provided testimony may potentially subject the employer to a retaliation claim.