Whistleblower Law Blog

First Amendment Protection: The Start of a Comeback?

NOTE: A version of this post first appeared on Law360.com. The author, R. Scott Oswald, is managing principal of The Employment Law Group, P.C.

With Lane v. Franks, the U.S. Supreme Court has backed off slightly from the absolutism of a 2006 decision that limited the free-speech rights of public employees — and, in the process, has created a framework that may allow more moderation in future cases.

At one level the Court’s holding yesterday — that the First Amendment can protect government workers from punishment for testifying under oath about job-related matters — was unremarkable, even obvious.

But while Justice Sonia Sotomayor offered her 9-0 opinion mainly as a clarification of Garcetti v. Ceballos, which denies government employees constitutional protection for “speech made pursuant to [their] official duties,” she also added two new considerations that promise to bring more workplace speech under the First Amendment’s shield:

  • Whether an employee is acting on a civic obligation to “society at large”
  • Whether allowing retaliation would discourage important types of whistleblowing

In so doing, Lane hearkened back to the more employee-centric balancing test of 1968’s Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., which had stood mostly undisturbed until the 5-4 ruling in Garcetti.

Justice Sotomayor’s fresh formulation — she was not on the Court for Garcetti — will give hope to public employees who face retaliation for speaking against wrongdoing or danger, even if they do so as a routine part of their jobs. Under Garcetti such employees may claim help from a patchwork of whistleblower laws, but they have no First Amendment right against punishment by the government, their employer. By Garcetti’s black-or-white rule, people on the public payroll can speak as citizens only when they speak outside the scope of their “daily professional activities.”

In Lane, Justice Sotomayor blurred this line. She looked beyond routine job duties to find an “independent obligation” for citizens — in this case, a manager who fired a politically powerful no-show employee — to testify truthfully under oath in an official proceeding. This “distinct and independent” duty transforms sworn testimony into “speech as a citizen,” she said, and separates it from speech made “purely” as an employee.

Indeed, she said, truthful testimony under oath is “a quintessential example” of civic speech — implying that there are other examples, too. In Lane, she found such civic speech is protectable by the First Amendment.

Justice Sotomayor was careful to stay within the bounds of Garcetti by applying her analysis only to testimony offered “outside the scope of … ordinary job responsibilities.” That limit by itself practically settles the question, as Justice Clarence Thomas noted in a brief concurrence joined by Justices Antonin Scalia and Samuel Alito. Still, none of the justices truly quibbled: An employee’s work-related words may become “citizen speech”  if they are compelled by societal duty, all agreed.

Further steps were unnecessary in Lane, yet they follow inexorably. Under Lane‘s civic-minded analysis, the government hardly can punish its employees for testifying truthfully (and responsibly) even when it is part of their “daily professional activities.” And if Garcetti must allow an exception for this “quintessential” civic duty, then it may allow exceptions for other civic duties, too.

Is it a civic obligation for government employees to object to corruption and fraud, for example? How about reporting threats to public safety?

Justice Sotomayor supplied a second basis for rethinking Garcetti by considering, in her analysis of “citizen speech,” the importance of protecting government employees who report certain types of wrongdoing.

“It would be antithetical to our jurisprudence,” she said, “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, she continued, “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.”

Once again Justice Sotomayor makes an argument too strong to be contained by Lane‘s self-declared limitations. Technically Lane may express “no opinion on the matter,” as it insists in a footnote, but putting employees in an “impossible position” can’t suddenly become constitutionally acceptable when the conflict arises at the core of a job, rather than its periphery. (It may be less acceptable, in fact.)

Garcetti remains untouched for now: While Lane tightened the definition of “employee speech,” it didn’t directly challenge the idea that such speech is categorically unprotected by the First Amendment. Still, Justice Sotomayor has weakened Garcetti‘s false dichotomy, implying instead that workplace speech for public employees actually has three categories:

  • Pickering speech — Spoken as a citizen, protected by the First Amendment as long as it doesn’t impair the government’s efficient functioning;
  • Garcetti speech — Spoken “purely” as an employee (to use Lane‘s crucial modification), unprotected by the First Amendment; and
  • Hybrid speech — Spoken as an employee but with genuine civic motivation, and with a strong societal interest in the outcome. Treated as citizen speech and subject to the Pickering balancing test.

Lane didn’t require this framework to solve the case at hand, but its new factors should prove crucial in the harder cases that lie ahead — cases that were anticipated in prescient Garcetti dissents from Justices John Paul Stevens and David Souter, both now retired.

Justice Stevens, for instance, cited real-life examples where he believed a government employee should be able to claim constitutional protection — yet cannot, under Garcetti‘s definition of employee speech.  In one such case, a police officer claimed he was punished for reporting a crime that implicated a local political figure; in another, an engineer claimed he was punished for internal reports that raised safety issues about a dam.

Neither Justice Stevens nor Justice Souter — nor Justice Stephen Breyer, in another dissent — questioned Garcetti’s basic rule on employee speech; they suggested only limited exceptions that would trigger a Pickering balancing test. Justice Souter, for instance, urged an exception for speech “addressing official wrongdoing and threats to health and safety.”

Justice Sotomayor seems in much the same camp — her new factors easily could support such an exception — but in Lane she lays her groundwork without modifying Garcetti.  Since the entire Garcetti majority is still at the Court, such gradualism may be smart; the unanimity of Lane is a real achievement.

In the meantime, Lane adds one explicit new protection for employees — undoubtedly a good thing. By its language and rationale, Lane will immediately shield public employees from punishment for sworn testimony under subpoena in civil and criminal cases alike. Such retaliation is becoming more common in litigation under the False Claims Act, for instance. Previously it might have been ruled as obstruction of justice; now it is elevated to a constitutional matter.

Government whistleblowers who seek First Amendment protection for internal reports of wrongdoing — for revealing facts that a boss “would rather not have anyone else discover,” as Justice Stevens said in his Garcetti dissent — must wait a bit longer, unfortunately.

Still, in Lane they may see the signs of a Supreme Court that is moving back in their direction.

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