TBA Law Blog

Posted by: Christy Gibson on Jul 10, 2014

by Jesse Nelson*

Admittedly my impression of the U.S. Supreme Court’s recent opinion in Lane v. Franks[i] after the first reading was this:  a narrow set of facts gave rise to a narrow issue that resulted in a narrow opinion.  But remembering that the Supreme Court does not render insignificant decisions, I thought to reconsider.

Central Alabama Community College (“CACC”) hired Mr. Lane as the Director of Community Intensive Training for Youth (“CITY”), a program designed to assist underprivileged youth.  Early in his tenure, Mr. Lane discovered during an audit of the program’s finances that an Alabama State Representative, Suzanne Schmitz, was on the program’s payroll but never performed work on its behalf.  Being unable to find a compromise with Ms. Schmitz that would include her performing work for CITY, Mr. Lane reported the issue to the college’s president and attorney.  They warned him that firing Ms. Schmitz could have negative repercussions for CITY and Mr. Lane.  But still, Lane fired her.

The facts underlying Ms. Schmitz’s termination caught the attention of the FBI, which charged her with several counts of fraud and theft arising from her receipt of payments from CITY. At her trial in 2008, Mr. Lane testified, pursuant to a subpoena, regarding the facts giving rise to his termination of Ms. Schmitz.  After the jury failed to return a verdict, Mr. Lane—again pursuant to a subpoena—testified at Ms. Schmitz’s retrial in 2009 at which she was convicted on several counts of theft and fraud.

Preceding Mr. Lane’s testimony at the second trial, and purportedly due to the program’s continuing financial shortfalls, CACC’s new president fired him.  Mr. Lane brought suit against CACC’s president, Steve Franks, in Franks’ individual and official capacities alleging his termination was in retaliation for testifying against Ms. Schmitz—that is, he was fired in violation of the First Amendment for engaging in protected speech.

Despite finding disputed issues of material fact as to the reason for Lane’s termination, the District Court granted summary judgment to Defendants, reasoning that Lane’s compulsory testimony was not protected speech.  The Eleventh Circuit Court of Appeals in affirming, held “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.’”[ii]

Writing for the Court, Justice Sotomayor defined the issue as “whether the First Amendment [protects] a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities.”[iii]

By way of background, Garcetti v. Ceballos [iv] established the two-step process for determining whether the First Amendment protects a public employee’s speech.  The first inquiry is whether the employee spoke as a citizen on a matter of public concern, and if so, whether the government had adequate justification as an employer for treating the employee differently than a member of the general public.[v]

Courts have steered many a train off the tracks, though, when applying the first prong—whether the person spoke as a citizen or an employee.  The Eleventh Circuit held Mr. Lane’s speech was not protected because “it owe[d] its existence to the employee’s professional responsibilities.”[vi]  The Sixth Circuit has adopted this language verbatim,[vii] which has as its genesis the Supreme Court’s analysis in Garcetti.  But what these courts overlooked in relying on this language is the sentence immediately preceding it in Garcetti:  “The significant point is that [the speech occurred] pursuant to Ceballos’ official duties;”[viii] only after that important qualification did the Court use the “owes its existence” language.  But the issue in Lane involved the exact opposite fact; he was acting outside his official duties.

So, too, do the courts ignore Garcetti’s assertion that “the First Amendment protects some expressions related to the speaker’s job” and that it even offers as an example those employees who speak about the management of public funds.[ix]

But thankfully, the Supreme Court in Lane steered us back on course.  In what should be a collective “whew!! [with a swipe of the forehead]” by public employees everywhere, the Court said yes, such speech is protected.  The cornerstone of its opinion was Lane testified as a citizen, not as a government employee.  Its reasoning was all citizens—not just public employees—have an obligation to tell the truth in judicial proceedings.  And after resolving that issue, the remaining facts were more-or-less gravy:  The subject matter about which he spoke was certainly of public concern, and the government had no adequate justification for limiting it.

At least from the plaintiffs’ perspective, the Lane decision appears to be a no-brainer.  But that it took the Supreme Court’s involvement at all—particularly under these facts—is troubling.

And this is where my original impression of “narrow” rears its ugly head again.   Two pivotal facts on which the Supreme Court relied in Lane were that his job duties did not entail his testifying in court and he did so pursuant to a subpoena.  And while the Court, correctly, pointed out that a citizen, separate from his obligation to his employer, has an obligation to testify truthfully, such an observation offers little protection to employees speaking outside this context.

So where does this leave those employees whose speech is not so compelled?  Mr. Lane had no choice but to speak; ironically, the government compelled him to.  Perhaps a better phrasing of Lane’s issue would be, “Does the First Amendment protect a government employee’s speech that pertains to government affairs that the government compelled him to give under the threat of government prosecution if he did not speak?”  If the next case’s facts again fit within this framework, then yes, I suppose Lane is a L.A. freeway.  But for those public employees who through the context of their jobs are aware of facts about which they later want to engage debate but who have not been compelled to do so, the road is significantly narrower and may offer little protection indeed.

Narrow or not, at least Lane put the brakes on some courts’ ever-expanding definition of employee speech.  And if for no other reason than that, Lane is not a narrow victory at all. 


Jesse D. Nelson practices in Knoxville, Tennessee where he focuses almost exclusively on representing plaintiffs in discrimination, civil rights, and wage/hour cases. He may be reached at (865) 383-1053 or www.jessenelsonlaw.com.

[i]  2014 U.S. Lexis 4302, ______ U.S. ______ (2014).

[ii] Lane v. Central Alabama Comm. College, 523 Fed. Appx. 709, 711 (11th Cir. 2013).

[iii] Lane, 2014 U.S. Lexis 4302, at *6-7.

[iv] 547 U.S. 410 (2006).

[v] Garcetti, 547 U.S. at 418.

[vi] Lane, 523 Fed. Appx. at 711.

[vii] See Keeling v. Coffee County, 541 Fed. Appx. 522, 526 (6th Cir. 2013).

[viii] Garcetti, 547 U.S. at 421 (emphasis added).

[ix] Id.