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“Congress shall make no law ... abridging the freedom of speech ...”

--From: Article I,
U.S. Constitution

Erosion of First Amendment Rights

Tyranny is achieved in small, incremental steps that gradually erode the rights to life, liberty and the pursuit of happiness the Constitution was intended to insure.  Thus, according to the 2006 U.S. Supreme Court decision in Garcetti v. Ceballos: 547 U.S. 410; 126 S.Ct.,1951 (2006), public employees can be disciplined and even terminated for bringing unwanted, negative facts to the attention of their superiors, particularly if they involve the misconduct of another public employee.  That decision was recently revisited by the high court in Lane v. Franks, Case No. 13-483 (See video and article for background).

On June 19, 2014 the U.S. Supreme Court issued a ruling that was hailed by some in the media as a victory for the civil rights of public employees, but which rings weak and hollow upon further scrutiny.  Justice Thomas, In his concurring opinion, reiterated that in Garcetti, "we held that when a public employee speaks 'pursuant to' his official duties, he is not speaking 'as a citizen,' and First Amendment protection is unavailable."  That was not changed by the Supreme Court's present decision.  Instead, because Edward Lane had been subpoenaed to testify under oath against Alabama State Rep. Suzanne Schmitz, he was considered to be acting as a private citizen whose speech is protected by the First Amendment.  Thus, Lane prevailed against former college president Steve Franks and was entitled to be reinstated in the job from which he was fired.

Unfortunately for Lane, his former position had been eliminated; he has since found employment as a security officer in a military installation.  Moreover, Lane will not receive money damages because the defendant, Franks, as a state employee, had qualified immunity.  The irony here is that Frank's intention to terminate Lane was not made after Lane had testified under oath about Rep. Schmitz, but earlier when Lane, as Director of Alabama's Community Intensive Training for Youth (CITY) program, removed Rep. Schmitz from that program's payroll for her failure to perform any discernable service, an act for which Lane had been warned would result in reprisals against him.  Nevertheless, Justice Sotomayor, writing for the Court, chose to set up a straw standard that could be used to hand Lane (and the civil-rights community) a showcase, but disingenuous "victory" while leaving intact the Court's ruling in Garcetti that, "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes."  The Supreme Court's grandstanding in this instance is shameful.

Supreme Court limits free speech in workplace for public employees
May 31, 2006

WASHINGTON — The Supreme Court restricted the free-speech rights of the nation's 21 million public employees Tuesday, ruling the First Amendment does not protect them from being punished for complaining to managers about possible wrongdoing.

Although government employees have the same rights as other citizens to speak out on controversies of the day, they do not have the right to speak freely inside their offices on matters related to "their official duties," the Supreme Court said in a 5-4 decision.

"When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom," said Justice Anthony Kennedy, rejecting a lawsuit by a Los Angeles County prosecutor.

Lawyers for government whistle-blowers denounced the ruling. They said it could threaten public health and safety.

"In an era of excessive government secrecy, the court has made it easier to engage in a government cover-up by discouraging internal whistle-blowing," said Steven Shapiro, legal director for the American Civil Liberties Union (ACLU).

However, lawyers for city and state agencies said the decision will prevent routine internal workplace disputes from becoming federal court cases.

Employment attorney Dan Westman said the ruling frees government managers to make necessary personnel actions, such as negative performance reviews or demotions, without fear of frivolous lawsuits.

The decision threw out most of a lawsuit filed by Deputy District Attorney Richard Ceballos, who said he was disciplined after he wrote internal memos alleging a police officer lied to obtain a search warrant.

The prosecutor urged his supervisors to dismiss a pending criminal case because of police misconduct. His advice was rejected, and he was transferred to a lesser job farther from his home and denied a promotion.

Ceballos sued county officials, including then-District Attorney Gil Garcetti, alleging he was retaliated against for speaking out within the office.

Officials in the Los Angeles County District Attorney's Office said their actions arose from legitimate staff changes and contended Ceballos' report was not protected under the First Amendment. The U.S. Court of Appeals for the 9th Circuit ruled, however, that Ceballos' statements about an alleged lie in a search-warrant affidavit were "inherently a matter of public concern" protected by the Constitution.

The Supreme Court reversed that ruling Tuesday.

"The First Amendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities," Kennedy said in Garcetti v. Ceballos. The Bush administration backed the district attorney's office, citing the U.S. government's interest as "the nation's largest public employer."

The court's newest justice, Samuel Alito, cast a crucial vote to form the majority. The justices heard the case in October but were apparently split 4-4 when Justice Sandra Day O'Connor stepped down in February. It was re-argued in March. Also joining Kennedy were Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas.

In his dissent, Justice David Souter said, "I would hold that private and public interest in addressing official wrongdoing and threats to health and safety can outweigh the government's stake" in running an efficient office.

The ruling affects only constitutional free-speech claims related to work, the court said, not the rights of public employees off the job. Nor does it affect state and federal labor laws or laws the federal government and most states, including Washington, have that are designed to protect whistle-blowers, the court said.

But advocates for whistle-blowers said these laws prove ineffective in many cases.

Stephen Kohn, board chairman for the National Whistleblower Center, said, "It's a devastating decision that, in practice, obliterates protections for about 90 percent of public workers."

Kohn said most employees who expose wrongdoing do so through official channels. And for federal employees, he said, doing so is part of their job requirement. "So what are they supposed to do?" Kohn asked.

Tuesday's decision left open the possibility that an employee might be shielded by the First Amendment if he acted as a "citizen," rather than in an official capacity, and took his complaints to a newspaper or a state legislator.

Justice John Paul Stevens, in a separate dissent, said it "seems perverse" to protect whistle-blowers who go public, while punishing those who take their concerns to their managers.

"We think this is a bad decision, but it may not be a catastrophe," said Peter Eliasberg, an ACLU lawyer in Los Angeles. "It basically says, if you go to the L.A. Times, you might get some protection. But if you report it in the office and up the chain of command, you don't have any protection under the First Amendment."

The facts in the Ceballos case remain unclear, partly because the case has not gone to trial.

And it may not be over for Ceballos, said his lawyer Humberto Guizar. He noted the court's decision focused only on the memos the prosecutor wrote to his supervisor.

Later, Ceballos testified in court for the defendant, and he spoke about the case to the Mexican-American Bar Association.

Copyright 2006, The Seattle Times Company

From: David B. Savage, "Supreme Court limits free speech in workplace for public employees," The Los Angeles Times, May 31, 2006, http://seattletimes.com/html/nationworld/2003029639_scotus31.html, accessed 05/09/2014.  Material from The Washington Post, Gannett News Service and Knight Ridder Newspapers is included in this report.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

Additional Reading

Justices: Public employees' testimony merits protection
April 28, 2014

WASHINGTON — Government employees who testify about public corruption are protected by the First Amendment, several Supreme Court justices suggested Monday.

During oral arguments in a freedom-of-speech case out of Alabama, several justices challenged the notion that public employees who testify truthfully about an issue of significant public concern aren't shielded from retaliation.

"What kind of message are we giving when we're telling employees, you're subpoenaed in a trial, go and tell a falsehood because otherwise you can be fired?" Justice Sonia Sotomayor asked attorneys in the case.

The Fifth Amendment protects state employees against self-incrimination on the witness stand, but "it doesn't protect the department he works for from being incriminated," Chief Justice John Roberts said.

The case involves an employee at Central Alabama Community College whose testimony helped convict former Alabama state Rep. Sue Schmitz of corruption-related charges. The employee, Edward Lane of Ashville, was fired after he testified at Schmitz's first trial in 2008.

Before Lane gets a chance to prove in court his firing was retaliatory, the Supreme Court must decide if his testimony is protected speech under the First Amendment.

Lane, who attended Monday's arguments, was surprised that's even in doubt.

"I thought for sure that being able to go testify truthfully in court that I should be protected," he said in an interview on the Supreme Court steps after Monday's arguments. "And to find out (the other side) actually thinks that is not the case — that just blows me over."

Steve Franks, former president of the two-year college, says Lane's testimony wasn't protected by the First Amendment. His attorney, Mark Waggoner of Birmingham, argued Monday that Lane's testimony was based on information he gleaned only from his job and that he was testifying as a state employee, not a regular citizen.

"If the testimony is factual, based solely on the job duties, as it was here, inseparable from the job duties, and it is information that a citizen would not know, that only the testifier would know, then that is not protected speech," Waggoner told the justices.

Justice Antonin Scalia took issue with treating opinionated speech differently from speech that is strictly factual.

"I've never heard of this distinction, the First Amendment protects only opinions and not facts," Scalia said. "I've never heard of it."

State and federal government lawyers also sided with Lane on the First Amendment issue.

Alabama Attorney General Luther Strange, who represents the current president of Central Alabama Community College in the case, said state employees need to know it's safe for them to step forward with information about abuse of taxpayer funds.

"We depend on people like Mr. Lane... who are willing to and need to be able to testify in cases involving public corruption," Strange said.

A lawyer for the Justice Department, however, argued against giving all public employees blanket free-speech protections. Some government employees have jobs that regularly require them to investigate corruption or testify in court, Deputy Solicitor General Ian Gershengorn said. If their work is substandard, he said, they should be held accountable.

"The government shouldn't be disabled from being able to judge and evaluate the performance of its employees," Gershengorn said.

A second issue before the justices is whether Franks, the former college president, can be held liable for money damages in a wrongful termination suit Lane filed against Franks and the college, or whether he has immunity as a state employee.

Franks says Lane was fired because of budget cuts, not retaliation. In addition to the money, Lane is asking to get his job back.

"If we lose on immunity that means we can't get money damages from Franks, and I'm not saying that's unimportant, but the more important principle is to send a clear message that people can't terminate public employees for exercising their free-speech rights," said John Saxon, an attorney for Lane. "He could have resisted the subpoena, been found in contempt and he would have gone to jail. Instead he honors the subpoena, testifies, and does his job."

While Strange backs Lane on the free-speech question, he backs Franks on the issue of immunity. Strange, who said he's looking out for state employees on each side of the controversy, said Franks is entitled to immunity because, under federal case law in Alabama at the time, Lane's testimony wasn't protected speech.

The Alabama Education Association provided Lane with attorneys at the lower court levels because he was an association member while working at the college.

Lane was interim director of the Community Intensive Training for Youth Program at the college in 2006. After auditing the program's finances, he found no evidence Schmitz, the legislator, was performing her community relations job. Lane fired Schmitz in October 2006, and said she and others threatened that he and the college would suffer consequences.

The Schmitz case was part of a larger corruption investigation in Alabama related to state lawmakers who also held jobs at public colleges. The scandal led to several convictions and an overhaul of state ethics laws.

The National Association of Police Organizations is one of many groups supporting Lane's case.

"This Court must send the message that retaliation against police officers because of their testimony is forbidden," according to the group's brief. "If not, floodgates of greater retaliation will inflict grave harm on our nation's front line defenders, thus tampering with the operation of the rule of law."

The justices are expected to issue a ruling later this summer.

Copyright 2014, www.montgomeryadvertiser.com

From: Mary Troyan, "Justices: Public employees' testimony merits protection," The Montgomery Advertiser, April 28, 2014, http://www.montgomeryadvertiser.com/story/news/2014/04/28/justices-public-employees-testimony-merits-protection/8426957/, accessed 05/10/2014.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

Additional Reading
  • Lane v. Cent. Alabama Comm. Col., et al., Bloomberglaw.com, http://www2.bloomberglaw.com/public/desktop/document/ Lane_v_Cent_Ala_Cmty_Coll_523_Fed_Appx_709_11th_Cir_2013_Court_Op, accessed 05/10/2014 (remove space).

  • Lane v. Franks, SCOTUSblog, http://www.scotusblog.com/case-files/cases/lane-v-franks/, accessed 05/10/2014

  • Lane v. Franks, Docket, U.S. Supreme Court Case No. 13-483, http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-483.htm, accessed 05/10/2014.

  • Lane v. Franks, 573 U.S. ____ (2014).

Audio adapted from National Public Radio (NPR), "How a Public Corruption Scandal Became a Fight over Free Speech" (20140428_me_how_a_public_corruption_scandal_became_a_fight_over_free_speech.mp3), and "Justices Troubled by their Earlier Ruling on Public Employee Speech Rights" (20140428_atc_free_speech_in_focus_during_high_courts_case_on_public_employee.mp3), both published April 28, 2014 and accessed 05/29/2014.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

Supreme Court Sides with Whistleblower in Retaliation Case
June 19, 2014

In a case over retaliation against a public employee who was fired after testifying about corruption, the Supreme Court says the man gave testimony as a concerned citizen and should not have been punished. The decision was unanimous, overturning lower courts.

In the case of Lane v. Franks, Edward Lane sued Central Alabama Community College President Steve Franks after Lane was fired from his job leading the school's program for at-risk youth. Lane had determined a state representative was on the program's payroll despite doing no work for the group. Franks fired him after Lane testified in an ensuing FBI case against the elected official.

The Supreme Court justices ruled that the First Amendment "protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities."

Their decision will send part of the case back to the lower courts, as the justices said Franks, who has since retired, is entitled to limited immunity for acting in an official capacity. In that portion of their ruling, they agreed with the lower courts' decisions. The justices are sending Lane's case against the college's current interim leader (who inherited the "official" portion of the lawsuit) back to the lower courts.

Back in 2006, Lane was the director of Central Alabama Community College's statewide Community Intensive Training for Youth (CITY) program when he conducted an audit that found state Rep. Susan Schmitz was being paid without reporting for work.

The Supreme Court's summary tells us what happened next:

"Lane eventually terminated Schmitz' employment. Shortly thereafter, federal authorities indicted Schmitz on charges of mail fraud and theft concerning a program receiving federal funds. Lane testified, under subpoena, regarding the events that led to his terminating Schmitz. Schmitz was convicted and sentenced to 30 months in prison. Meanwhile, CITY was experiencing significant budget shortfalls. Respondent Franks, then CACC's president, terminated Lane along with 28 other employees in a claimed effort to address the financial difficulties. A few days later, however, Franks rescinded all but 2 of the 29 terminations — those of Lane and one other [probationary] employee."

The firing, which came in 2009, led Lane to file a lawsuit against Franks in both his individual and official capacities, saying he had violated Lane's First Amendment protections. Lane's attorneys sought damages and his reinstatement.

Before today's ruling, two lower courts sided with Franks and the college, saying Lane had acted in an official capacity in firing Schmitz — and was essentially doing the same thing when he testified at her trial. As a result, those courts held, Lane couldn't claim the protections of the First Amendment.

But the Supreme Court disagreed today, ruling that Lane testified "as a citizen on a matter of public concern" and calling sworn testimony at a trial "a quintessential example of citizen speech for the simple reason that anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth."


Justice Sotomayor appears to have been influenced by the large number of amicus briefs filed by civil rights organizations in support of Edward Lane, an African American.  Among them were the American Civil Liberties Union, the American Federation of Labor and Congress of Industrial Organizations, and the National Education Association.  Despite the compelling force of Garcetti, Sotomayor looked to Lane's subsequent testimony under oath to justify a decision to rule in his favor.  Could this be the judicial equivalent of affirmative action?

With this ruling, the conservative justices appeased civil rights groups while keeping intact the draconian doctrine, embodied in Garcetti, that continues to deprive public workers of First Amendment rights.

If there is any redeeming consequence that emerges from this Supreme Court decision, it is this: If you are a public employee who was fired after exposing the wrong-doing of another public official, you are now entitled to be reinstated if you are subsequently subpoenaed to testify under oath against that same public official.  But don't expect to collect any money damages from state officials as long as their "immunity" is recognized by the courts.

The court's opinion, which could add a new wrinkle to how whistleblowers are treated in the U.S., was written by Justice Sonia Sotomayor; a concurring opinion was written by Justice Clarence Thomas, who was joined by Justices Antonin Scalia and Samuel Alito.

"Almost 50 years ago, this Court declared that citizens do not surrender their First Amendment rights by accepting public employment," Sotomayor wrote. "Rather, the First Amendment protection of a public employee's speech depends on a careful balance 'between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees,'" citing the landmark 1968 case.

Copyright 2014, NPR    

From: Bill Chappell, "Supreme Court Sides with Whistleblower in Retaliation Case," National Public Radio, June 19, 2014, http://www.npr.org/blogs/thetwo-way/2014/06/19/323575609/supreme-court-sides-with-whistleblower-in-retaliation-case, accessed 06/19/2014.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

Additional Reading
  • Nina Totenberg, "From Supreme Court, Firm Support for Employee in Retaliation Case," NPR, June 19, 2014, http://www.npr.org/2014/06/19/323696098/from-supreme-court-firm-support-for-employee-in-retaliation-case, accessed 06/19/2014.

  • Lane v. Franks, 573 U.S. ____ (2014).







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