Much will be written about the new First Amendment free-speech-in-the-workplace case decided by the U.S. Supreme Court today.
But frankly, I wouldn’t be surprised if most of them say nearly the same thing — that testimony by an employee who has been subpoenaed outside the course of his or her job responsibilities is now protected by the First Amendment. I predicted as much last month. Yawn.
Yet that’s the general proposition that comes out of the case of Lane v. Franks today. This was a unanimous decision — and written by Justice Sotomayor. This was not a close call in the court’s view — something that was foreseen by the questions at oral argument. No one should really be surprised.
Another way to look at the case is to see that the court was asked to revisit the scope of its holding in Garcetti v. Ceballos. Some courts had interpreted the rule in that case — that employee speech made “pursuant to official job duties” is not protected — pretty broadly.
The Supreme Court rejected the view that almost any speech by an employee doesn’t deserve First Amendment protection.
Rather, the court said: “The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”
Justice Thomas wrote a concurrence to basically say the same thing. He goes on to say what this case is not about:
We accordingly have no occasion to address the quite different question whether a public employee speaks “as a citizen” when he testifies in the course of his ordinary job responsibilities. For some public employees—such as police officers, crime scene technicians, and laboratory analysts—testifying is a routine and critical part of their employment duties. Others may be called to testify in the context of particular litigation as the designated representatives of their employers. See Fed. Rule Civ. Proc. 30(b)(6). The Court properly leaves the constitutional questions raised by these scenarios for another day.
I’ve talked before about how Connecticut has an equivalent state law that adopts First Amendment precedent. So for Connecticut employers, it’s important to understand that employees who are subpoenaed to testify about work (but outside their official job duties) will now have some protection.
But the Lane case always seemed like an outlier case to begin with; if you’re disciplining employees for testifying truthfully under a subpoena in a corruption case, you probably have other issues as well.