Court considers whistleblower free speech rights


WASHINGTON (AP) — When Edward Lane testified about corruption at a community college program he headed in Alabama, he was fired.

The Supreme Court on Monday considered whether the First Amendment protects Lane and millions of other public employees from job retaliation when they offer testimony about government misconduct in court.

The high court has previously ruled that the constitutional right to free speech protects public workers only when they speak out as citizens, not when they act in their official roles.

Most justices appeared to side with Lane’s view that court testimony revealing official misconduct should be constitutionally protected even if it covers facts a government employee learned at work.

But the justices struggled over whether that protection should automatically cover all public workers, even police officials or criminal investigators whose job duties require them to testify in court about specific cases.

“What is (Lane) supposed to do?” Chief Justice John Roberts asked Mark Waggoner, the attorney representing Steve Franks, the former president of Central Alabama Community College who fired Lane.

When Waggoner said Lane was not discouraged from complying with the subpoena or testifying truthfully, Roberts complained: “You are suggesting he can be fired if he does it.”

Justice Ruth Bader Ginsburg said testifying in court “was not part of the job description of Lane,” so he was speaking more as a citizen.

Ian Gershengorn, deputy solicitor general arguing for the Obama administration, argued that Lane’s testimony was protected by the First Amendment, but he said that protection shouldn’t apply to workers whose jobs require them to perform investigations and testify in legal proceedings.

Justice Sonia Sotomayor wondered “what kind of message” the government is sending by suggesting that some employees risk being fired for telling the truth in court if it might harm their employer.

Gershengorn warned the justices that an overly broad ruling could interfere with the government’s ability to judge the performance of its employees and hand out discipline for worker misbehavior. He said there is a range of laws that protect whistleblowers.

The case has attracted interest from the American Civil Liberties Union, whistleblower groups and police organizations which argue that whistleblowers will be reluctant to testify in court about allegations of fraud or other misconduct if there is no protection from job retaliation.

Lane claims he was fired from his job as director of a college youth program after exposing corruption involving a state lawmaker. Soon after he began the job in 2006, Lane discovered that state Rep. Sue Schmitz was listed on the payroll, but rarely came to work. Lane fired Schmitz for nonperformance, despite being warned that terminating her could place his own job in jeopardy.

The FBI then began investigating Schmitz and called Lane to testify before a federal grand jury and later, under subpoena, at Schmitz’s two criminal fraud trials. Lane claims he was fired after the first trial as retaliation, in violation of his First Amendment rights. He is suing Franks, the former college president, as well as the college’s current president, Susan Burrow.

A federal district judge ruled against Lane and the 11th U.S. Circuit Court of Appeals affirmed the ruling, finding that Lane was testifying as a college employee, not as a citizen. The appeals court also found that Franks had qualified immunity from being sued in his personal capacity. Qualified immunity protects public officials from being sued for damages unless the official violated a constitutional right that was clearly established at the time of the misconduct.

Several justices seemed to agree that Edwards is likely shielded from claims for damages based on qualified immunity, since 11th Circuit law at the time did not indicate public employees had any First Amendment protection in giving court testimony.

Some state and federal workers can seek protection under specific whistleblower laws, but those often deal only with specific government agencies or have gaps that don’t cover every worker. In Lane’s case, he tried to sue under an Alabama law that protects public workers from retaliation if they report violations of law, but the state law exempts employees at state colleges and universities.

A decision in Lane v. Franks, 13-483, is expected by June.

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