Supremes Rule That Trial Speech is Protected Speech – Part II

Click here to read Part I.

By John Alan Doran

The Supreme Court previously ruled in Garcetti that a prosecutor’s internal memorandum written in the course of his job responsibilities did not constitute protected speech because he was speaking as a government employee pursuant to his job responsibilities, and not as a public citizen.  The new Lane case tests the boundaries of the government employee/public citizen dichotomy.  Does a government employee act as a public citizen when he testifies pursuant to a subpoena with respect to matters directly involving his work?

The Supreme Court resolved a circuit court split by holding that, when a government employee testifies under compulsion of a subpoena, and such testimony is not part of the employee’s regular job responsibilities, the speech is generally entitled to protection, with certain exceptions.  The Court also recognized that this clarification of its holding in Garcetti was not clearly established, which allowed the President to invoke a qualified immunity defense against the personal capacity claim.

The Court held that testimony under oath by a public employee constitutes speech as a private citizen when the testimony is outside the scope of the employee’s ordinary job duties.  The Court noted that sworn testimony in court is a “quintessential example of speech as a citizen” because everyone who testifies in court owes a duty to the court and society as a whole to tell the truth.  While the Eleventh Circuit held that Lane’s speech was not public because he learned of matters to which he testified in the course of performing his job, the Supreme Court held that this reads Garcetti far too broadly.  Speech that relates to public employment or that concerns matters learned in the course of public employment does not make the speech any less public.  The only question to ask is whether the actual speech itself falls within the employee’s duties, not whether its subject matter arises out of those duties.