Supreme Court Thinking About Whether People Can Be Fired For Telling Truth Under Oath
A bizarre case in Alabama highlights a more bizarre judicial precedent.
NYT (“Justices Appear Willing to Give a Fired Public Worker Only Half a Victory“):
After a tangled Supreme Court argument on Monday over the First Amendment rights of public employees, it seemed likely that the justices would render a split decision.
The question was whether Edward R. Lane, a former director of a youth program at a public community college in Alabama, could be fired for responding to a subpoena and giving trial testimony in what the state’s attorney general told the court on Monday “was one of the most egregious public corruption situations in Alabama’s history.”
A majority of the justices seemed ready to say that Mr. Lane did not lose his First Amendment protections when he testified. But that ruling may not help Mr. Lane.
In order to overcome the qualified immunity of the official who fired him, Mr. Lane must show not only that his rights were violated, but also that those rights were clearly established at the time. It was not clear on Monday that the Supreme Court was prepared to rule in Mr. Lane’s favor on the second point.
Mr. Lane was subpoenaed to testify at the 2009 corruption trial of a state legislator accused of accepting paychecks from the youth program without doing substantial work for it. The legislator, Suzanne Schmitz, was convicted and sentenced to 30 months in prison.
Mr. Lane was fired, and he sued the president of the college, Steve Franks, saying that his termination was retaliation for his testimony and a violation of his First Amendment rights. Mr. Franks said he let Mr. Lane go for financial reasons unrelated to his testimony.
The federal appeals court in Atlanta said it was unnecessary to decide who was right because public employees have no First Amendment protections in any event for statements they make as part of their official duties.
Since “the record fails to establish that Lane testified as a citizen on a matter of public concern,” the appeals court said in an unsigned opinion, “he cannot state a claim for retaliation under the First Amendment.”
Four lawyers took part in Monday’s Supreme Court argument. The lawyers for Mr. Lane and Mr. Franks asked the justices to rule in their favor on both questions. Lawyers for Alabama and the United States urged the court to issue a split decision, one that would generally protect public employees who found themselves in Mr. Lane’s position in the future but would not entitle him to damages.
Chief Justice John G. Roberts Jr. appeared sympathetic to Mr. Lane. “What is he supposed to do?” he asked Mark T. Waggoner, a lawyer for Mr. Franks. If Mr. Lane testified truthfully, the chief justice said, he could be fired. If he lied or failed to appear, he could be punished.
Mr. Waggoner said that he “would never suggest that anybody not comply with a subpoena, comply with an investigation or testify truthfully.”
The chief justice responded, “But you are suggesting he can be fired if he does it.”
At the same time, the chief justice repeatedly suggested that the right not to be fired in those circumstances was not clearly established in 2009 and so could not be the basis of a lawsuit against an official with qualified immunity.
Tejinder Singh, a lawyer for Mr. Lane, said the Supreme Court’s precedents had established the right by 2009 even though the appeals court thought otherwise. Mr. Franks should have known that, he said.
“We’re dealing with a university administrator, who has a general counsel, who has the ability to consult that counsel before making any personnel decisions,” Mr. Singh said of Mr. Franks.
Justice Sonia Sotomayor asked Luther J. Strange III, Alabama’s attorney general, “Why do we put people at risk for telling the truth?”
I stumbled on the story Sunday and again yesterday and just never got around to writing about it. Regular commenter Rick Almeida reminded me of the case in the discussion section of my earlier post on the Donald Sterling situation.
I’m not sure the framing makes sense to me. That is, ultimately I don’t see it as a 1st Amendment issue so much as a public policy issue.
The outcome is outrageous because it punishes good behavior and serves to reinforce public official corruption, not because it violates the free speech rights of the whistleblower. We want public employees to be able to truthfully testify about the bad conduct of other public employees and, in cases like this, actually demand it of them. To allow retaliation by the agency for this conduct is just bizarre. (Note: The situation gets much more complex in cases involving sensitive classified information. That’s not in play here.)
Further, as Roberts and Sotomayor—hardly ideological soulmates—suggest in their questioning, it’s simply untenable to both compel someone to appear in court and testify under oath, under penalty of jail time for contempt or perjury, and then have them subject to being fired for telling the truth.
I don’t have strong views on the narrow technical question as to whether the state of the law at the time of the firing allows Franks standing to sue. But, given that it’s a state entity rather than a private individual being sued, I’m strongly inclined to think justice, not legal technicalities, should prevail.