Article Summary

Although unadventurous on its face, the U.S. Supreme Court's 9-0 holding in Lane v. Franks lays crucial groundwork for a softening of Garcetti v. Ceballos, a 2006 case that curtailed First Amendment protections for government employees.

This expert analysis by TELG managing principal R. Scott Oswald was published by Law360 on June 19, 2014. The full article is . (Site requires paid subscription.)

Excerpted from:

New Ways To Separate Employee Speech From Citizen Speech

With Lane v. Franks, the U.S. Supreme Court has stepped back slightly from the absolutism of an earlier decision that limited the free-speech rights of public employees — and, in the process, has sketched a framework that may allow similar results in tougher cases to come.

In some ways, the court’s holding Thursday — that the First Amendment can protect government workers from punishment for testifying truthfully under oath — was unremarkable, even obvious. But while the 9-0 opinion by Justice Sonia Sotomayor portrayed itself as an application of Garcetti v. Ceballos, which held that government employees have no constitutional protection for “speech made pursuant to [their] official duties,” it actually added two important new factors to distinguish unprotected “employee speech” from protectable “citizen speech.”

In doing so, Lane hearkened back to the definitive 1968 balancing test of Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., which stood mostly undisturbed until Garcetti in 2006.