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By Debra Roth

Speaking Publicly, Take Two

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A few months ago, I wrote on the topic of how most federal employees who are disciplined for publicly speaking out are found not to have a First Amendment protection on their speech. I also noted that a case was pending before the U.S. Supreme Court that might be a game changer. I’m back to report on the result.

First, a refresher on the state of the law as it stood before the Supreme Court ruled last month.

Thirty years ago, the Supreme Court recognized that public employees, like all citizens, enjoy a constitutionally protected interest in freedom of speech. However, according to the Court, public employee free speech rights must be balanced against the need of government agencies to exercise “wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.”

In sum, speech by a federal employee (in a blog, on your Twitter account, on your Facebook page, in an op-ed), is protected by the First Amendment, and thus cannot be the subject of discipline, if you were speaking as a private citizen (not in your official capacity) and on a matter of public concern. When you speak out with the indicia of your official capacity on a matter of public concern, your speech can be regulated by your federal employer, including discipline. The rationale is found in the Supreme Court case, Garcetti v. Ceballos, 547 U.S. 410 (2006).

Lane v. Franks, the case just decided by the Supreme Court, was thought to be about whether some official capacity speech is protected. A Central Alabama Community College employee who became the director of Community Intensive Training for Youth, a program for at-risk youth, discovered that an Alabama state representative was on the program’s payroll, despite never having provided any work or services. When the employee notified the CACC president about his concerns, the president and CACC’s attorney warned him that ending the state representative’s “employment” would not be wise for either CACC or for the employee.

The employee ignored this warning and terminated the Alabama state representative when she refused to report to work. The employee, while still employed, was later subpoenaed for his testimony in two federal criminal trials for mail fraud and fraud involving a program receiving public funds. The employee testified that the state representative had not reported to work, had not submitted time sheets, and had refused to report to work. Subsequently, the CACC president fired the employee who terminated the state representative.

The employee then filed suit in federal district court, claiming that his firing was retaliation for his testimony, which was protected by the First Amendment. The court of appeals ruled for the employer, finding that an employee does not enjoy First Amendment protection when the speech was made pursuant to his official duties.

Surprisingly, the Supreme Court held that truthful testimony under oath by the public employee was made outside the scope of his ordinary job duties and thus was speech as a private citizen for First Amendment purposes. The Court cited the Garcetti case (“Exposing governmental inefficiency and misconduct is a matter of considerable significance”) to support its holding that the testimony was a matter of “significant” public concern. Finally, the court considered “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.”

In a 1983 decision, the Supreme Court recognized that government employers often have legitimate interests in promoting efficiency and integrity in the discharge of employees’ official duties and maintaining discipline in the public service. However, the court stated that here the public employer had not, and could not, assert any government interest that tips the balance in its favor. The employee’s testimony was not false or erroneous, and he had not disclosed any sensitive, confidential or privileged information in his testimony. The court concluded that the employee’s speech was entitled to First Amendment protection, marking it a good day for public employees.

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth in Washington. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com. View her blog at blogs.federaltimes.com/federal-law.

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