Higher education lawyers and administrators have taken comfort in the Supreme Court’s 2006 decision in Garcetti v. Ceballos, which precluded First Amendment claims when the speech at issue was made as an employee rather than as a citizen. But that comfort came with an underlying anxiety—as though the decision were too good to be true. A number of circuit courts have narrowed Garcetti; for example, the Ninth Circuit has taken much speech of faculty members outside its ambit. Demers v. Austin, 746 F3d 402 (9th Cir 2014). See Jayne Benz Chipman‘s great description of Demers. (Although the decision was modified and the cite above is the final opinion, the fundamental points are the same.)
Today (June 19, 2014), in a case involving an Alabama community college, the Supreme Court unanimously ruled that Garcetti does not apply to “truthful sworn testimony, compelled by subpoena, outside the scope of [an employee’s] ordinary job responsibilities.” Lane v. Franks, No. 13-483, slip op at 8 (US June 19, 2014), http://www.supremecourt.gov/opinions/13pdf/13-483_9o6b.pdf.
In Lane, a community college program director, Edward Lane, dismissed a program employee who had not been showing up to work but had been collecting a paycheck that included payment of federal funds. The college president, Steve Franks, had warned Lane to not fire the employee. In two highly public criminal trials, Lane testified about the circumstances surrounding the employment dismissal. Franks later dismissed Lane, and Lane sued, claiming a violation of the First Amendment and asserting that Franks’ decision was motivated by the testimony Lane gave during the trials.
The Eleventh Circuit Court of Appeals had adopted a broad interpretation of Garcetti, finding that the testimony “owed its existence” to Lane’s job, so the testimony was not protected speech because of Garcetti. The Supreme Court rejected that interpretation. Providing truthful sworn testimony was not part of Lane’s ordinary job responsibilities, and the importance of giving truthful testimony in court when compelled by a subpoena is an obligation of all citizens.
The actual circumstances—a First Amendment claim based on sworn testimony—may not come up often. The point resulting from narrowing Garcetti should not be lost, though: when an institution dismisses any employee for speech-related activity, it should continue to assess the potential disruptive effect of the speech on institutional operations and be prepared to defend a First Amendment claim on alternative bases other than Garcetti. Continue to frame speech as part of the employee’s job when that is a legitimate position, and let the trial lawyers argue that Garcetti applies, but don’t rest easy on an assumption that because speech relates to the job in some way, a First Amendment claim will be fruitless.