supreme-court-building-feat
Supreme Court Takes Positive Step for Public Employee Speech in ‘Lane v. Franks’

By June 23, 2014

Last Thursday, the U.S. Supreme Court handed down its decision in the case of Lane v. Franks (PDF), holding that a public employee’s in-court testimony about official corruption was protected by the First Amendment.

Edward Lane, the former director of a program for disadvantaged youth at an Alabama community college, filed a lawsuit claiming that he was fired for testifying in court about his decision to fire a state representative and employee of the college who failed to report for work. The Supreme Court ruled that Lane was speaking as a private citizen about a matter of public concern and, accordingly, that the First Amendment shielded his testimony from employer discipline.

This ruling is good news for the free speech rights of government employees and serves as much-needed clarification to the Court’s 2006 ruling in Garcetti v. Ceballos, which held that speech that a government employer does not violate the First Amendment by disciplining an employee for speech made pursuant his or her official duties.

In the 1968 case of Pickering v. Board of Education, the Supreme Court established a two-step test to determine the scope of public employees’ free speech rights. A court first had to ascertain whether an employee has addressed a matter of public concern, defined in the 1983 case of Connick v. Myers as one “relating to any matter of political, social, or other concern to the community.” If so, the court then had to weigh the employee’s freedom to speak on that matter against the employer’s need to discipline its employees in order to serve the public effectively. In 2006, however, the Supreme Court added a new requirement to the first prong of that test in Garcetti: In order for their speech to enjoy First Amendment protection, public employees must now be speaking as private citizens and not “pursuant to their official duties.” Unfortunately, this holding risked discouraging would-be whistleblowers from exposing government wrongdoing to the public.

Garcetti also threw the free speech rights of faculty members at public colleges and universities into question. The intellectual inquiry that scholars and educators carry out is fundamental to their employment duties at institutions of higher education. Yet that inquiry also, by its very nature, addresses matters of public concern, plays a critical role in public discourse, and has the potential to displease authority figures at educational institutions who may then seek to suppress it. The Garcetti Court acknowledged this conundrum in its majority opinion—noting its ramifications for “additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence”—but left it unresolved, since the case at bar didn’t involve faculty speech.

So the lower federal courts have been picking up the Supreme Court’s slack—with a little help from FIRE and other organizations concerned about Garcetti’s threat to faculty expression. For example, the recent case of Adams v. Trustees of the University of North Carolina-Wilmington (PDF) involved a criminology professor, Mike Adams, who was denied a promotion to a full professorship because of his conservative political commentary. (FIRE President Greg Lukianoff and Program Officer for Legal and Public Advocacy Ari Cohn provide an excellent treatment of the case at Minding the Campus.) FIRE’s amici curiae (“friends of the court”) brief (PDF), authored and filed jointly with the American Association of University Professors and the Thomas Jefferson Center for the Protection of Free Expression, argued that since academic speech is not subject to Garcetti’s employment-duties analysis, scholars’ free speech rights should be determined—and protected—according to other Supreme Court precedents that acknowledge the vital contributions of academic speech to public discourse and the First Amendment interest in shielding that speech from retaliation. Fortunately, the U.S. Court of Appeals for the Fourth Circuit agreed (PDF), and this past March, a jury found that UNC Wilmington had indeed unconstitutionally retaliated against Professor Adams. Shortly thereafter, a federal judge ordered UNC Wilmington to promote Adams to full professor, with back pay.

There is currently a split in the federal circuits on this issue, with some circuit courts recognizing Garcetti’s carve-out for academic speech other circuits declining to do so. As Susan Kruth noted last year, the Fourth Circuit’s ruling in Adams redressed that balance in favor of greater First Amendment protection for scholars at public colleges and universities. The need to resolve this circuit split may prompt the Supreme Court to hear a case concerning academic free speech before long and plug up the hole in the Garcetti decision. Though this latest ruling in Lane v. Franks did not give the Court that opportunity since it did not involve academic speech, it has nonetheless made Garcetti’sapplication clearer—and given public-sector workers one more tool with which to fight for their constitutional right to speak freely.

Schools: University of North Carolina – Wilmington Cases: University of North Carolina – Wilmington: Professor Files Lawsuit Alleging Retaliation for Political Columns