A Small Victory for Whistleblowers: But Not This Whistleblower

Today the Supreme Court ruled unanimously in Lane v. Franks that the First Amendment protects a whistleblower public employee “who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities” from retaliation by his employer. The decision was important, but narrow. Justice Sotomayor’s opinion for the Court noted that the Court did not reach the question of what would happen to a public employee who gave testimony as part of his ordinary job duties. A brief concurrence by Justice Thomas (joined by Justices Scalia and Alito) reiterated the same point, specifying that police officers, crime scene technicians and laboratory analysts who testify as a routine part of their work were not covered by the opinion.

The Facts and this Ruling

Edward Lane was the Director of Community Intensive Training for Youth (CITY) at Central Alabama Community College (CACC) when he discovered through an audit that an Alabama State Representative, Suzanne Schmitz, was being paid while doing no work for CITY. Lane fired Schmitz, and after an FBI investigation of Schmitz was launched, Lane was subpoenaed to testify before a federal grand jury and in Schmitz’s criminal trial about the audit and his firing of Schmitz. CACC President Steve Franks later fired Lane, and Lane sued for retaliation.

The legal question in Lane is whether Lane was speaking as an employee or as a citizen on a matter of public concern when he testified. Under the Court’s precedent in Garcetti v. Ceballos, First Amendment protection attaches to a citizen speaking on a matter of public concern but not to public employees speaking pursuant to their official duties. The Court unanimously ruled Lane was speaking as a citizen on a matter of public concern.

As our Guest Blogger Professor Catherine Fisk observed after the oral argument, all the Justices seemed troubled by the Eleventh Circuit’s conclusion that Lane’s testimony was not protected by the First Amendment. Therefore a unanimous decision is unsurprising. Unfortunately for Lane, however, the Court did not impose its own easy unanimity in answering the legal question on the Eleventh Circuit and Steve Franks.

Rather, because the First Amendment right “was not clearly established at the time of the challenged conduct,” the Court ruled that Franks enjoyed qualified immunity from being sued in his personal capacity. Franks has by now been replaced by a new CACC president. The case now returns to the Eleventh Circuit for a determination whether the lawsuit against CACC’s new president in her official, not personal, capacity is barred by the Eleventh Amendment, which protects state sovereign immunity.

This explains why Lane is a small victory; it is not clear that Lane himself will get anything but a moral victory.

Future Rulings

More interesting are the future cases that the Court specifically didn’t address, namely the police officers, crime scene technicians and laboratory analysts who testify as a routine part of their work. Imagine the life of Tess Tube, a laboratory analyst who discovers forensic science misconduct in her lab, fails to convince her superiors of its importance, and then testifies about the misconduct during a related trial. Does Lane suggest her testimony is unprotected by the First Amendment? That would be a small victory for whistleblowers indeed.

Working in Tess’ favor might be the strongest part of Justice Sotomayor’s opinion, namely her emphasis on the importance of employee public speech in the context of a public corruption scandal:

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. Such a rule would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.

One would hope that the same public corruption scandal rule would apply in some circumstances involving testifying police officers, crime scene technicians and laboratory analysts like Tess. Unfortunately, however, the Court’s 5-4 decision in Garcetti in 2006 still stands in their way post-Lane. There, Richard Ceballos, a deputy district attorney in the Los Angeles County District Attorney’s Office, discovered inaccuracies in a warrant application in a criminal case and recommended that the case be dismissed. His supervisors disagreed and proceeded with the prosecution. Ceballos faced retaliation after he was called to testify for the defense. Justice Kennedy, joined by Chief Justice Roberts and the three concurring Justices in Lane (Thomas, Scalia, Alito) concluded that the First Amendment did not protect Ceballos because he spoke as a prosecutor (and thus in performance of his official duties), not as a citizen.

In dissent in Garcetti, Justice David Souter criticized the majority’s emphasis on the distinction between employee duties and citizen status; “it seems obvious,” he wrote, “that the individual and public value of such speech is no less, and may well be greater, when the employee speaks pursuant to his duties in addressing a subject he knows intimately for the very reason that it falls within his duties.”

Perhaps Justice Sotomayor, who is Justice Souter’s replacement on the Court, had the retired Justice’s dissent in mind when she wrote her strong language in Lane about public corruption scandals. Garcetti, however, may also explain the otherwise-unnecessary, and very brief, concurrence of the three Garcetti-majority Justices in the unanimous decision in Lane, strictly limiting Lane to its facts. It’s possible they may want to give only a small number of future whistleblowers victory while giving a small victory to one whistleblower.