Teachers, professors can speak more confidently after Supreme Court protects whistleblower's rights



The Supreme Court has taken a step -- whether it's a giant step or a baby step is yet to be seen -- toward restoring sensible First Amendment protection for teachers, professors and other government employees who blow the whistle on wrongdoing they learn about on the job.

Thursday's 9-0 ruling in Lane v. Franks protects government workers against firing, demotion or other retaliatory action for speech addressing matters of public concern, even if those matters relate to the speakers' work responsibilities.

Edward Lane brought the case after he was fired from Central Alabama Community College in 2009, a decision that suspiciously followed his testimony that helped convict an Alabama state legislator of defrauding the taxpayers for holding down a no-show "job" in Lane's department at CACC.

Lower courts threw out Lane's case on the grounds that he was speaking in his employee capacity and not as a citizen. In a 2006 ruling, Garcetti v. Ceballos, the Supreme Court said speech "pursuant to official duties" -- like writing a memo assigned by a supervisor -- is the speech of the employer, not the individual. And if the agency disapproves of the way the employee writes the memo, he can be fired with no First Amendment recourse.

But the Supreme Court, in a June 19 opinion by Justice Sonia Sotomayor, found Lane's testimony to be constitutionally protected speech that the college was forbidden from punishing. The Garcetti rule did not apply, Sotomayor explained, because Lane was speaking as a citizen -- any citizen, not just a government employee, can be subpoenaed to testify at a trial -- and his speech addressed matters of public concern.

Lawyers for government employers will interpret the decision narrowly in light of its unusually sympathetic facts; a contrary ruling would have resulted in "open season" on witnesses who give testify honestly. In Thursday's opinion, Sotomayor phrased the issue as "whether public employees may be fired ... for providing truthful subpoenaed testimony outside the course of their ordinary job responsibilities." If that is how the Lane precedent is understood, then it will protect only a minimal range of speech.

But the Lane case means quite a bit more than that.

Thursday's ruling draws a clear distinction between speech made as part of a work assignment (the Garcetti scenario) versus speech about information learned at work (which was Lane's situation). Many lower courts -- including the Eleventh Circuit panel that Thursday's decision overrules -- have misread the Garcetti ruling as a license to punish speech about work. That was never a logical understanding of the Garcetti case, and now the Supreme Court has said so, unequivocally. As Sotomayor wrote:

Garcetti said nothing about speech that simply relates to public employment or concerns information learned in the course of public employment. ... 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 practical takeaway from the Lane ruling is, counter-intuitively, that the employee who obediently follows the internal chain of command to resolve her concerns will benefit from less protection than the employee who takes her complaint to law enforcement or the news media.

The Lane ruling is especially noteworthy because of the eagerness among college and university employers to exert more punitive authority over their employees' off-campus social-media lives. Last month, the Kansas Board of Regents was roundly criticized for a Garcetti-based policy that exposes employees to sanctions including termination for speech "contrary to the best interests of the university."

It's now crystal-clear that the set of social-media speech to which Kansas can lawfully apply that fire-at-will policy is essentially an empty set. Only where an employee is actually posting on social media as part of a job assignment, such as the person who manages the Facebook page for the campus P.R. department, can the speech be treated as constitutionally unprotected.

Tagged: public employee speech rights, U.S. Supreme Court