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Justices Troubled By Their Earlier Ruling On Public Employee Speech Rights

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Justices Troubled By Their Earlier Ruling On Public Employee Speech Rights


Justices Troubled By Their Earlier Ruling On Public Employee Speech Rights

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  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
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This is ALL THINGS CONSIDERED from NPR News. I'm Melissa Block.


And I'm Robert Siegel.

Here's the questions the Supreme Court took on today: Are public employees protected from retaliation for their testimony in criminal cases? In the past, the conservative Court majority has been hostile to the notion of First Amendment rights for public workers.

But as NPR legal affairs correspondent Nina Totenberg reports, today's case seemed to be headed in a different direction.

NINA TOTENBERG, BYLINE: Edward Lane was fired after he testified truthfully that an Alabama State legislator was a no-show employee being paid by the taxpayers for no work. Lane managed a program for at-risk juvenile offenders that was run out of Central Alabama Community College. After he was hired, he conducted an audit and found that one of the program's employees, a state legislator named Suzanne Schmidt, was not showing up for work.

Lane says that the people in his office warned him not to tangle with Schmitz because of her influence. But when she repeatedly refused to show up for work, he fired her. Soon after, he says, the FBI was investigating public corruption in Alabama and Lane was subpoenaed to testify, first before a grand jury and later at Schmitz' two fraud trials. Shortly thereafter, he was fired by the president of the community college.

EDWARD LANE: He told me to clean out my office that day, like I had done something wrong. When I got in my car to leave, I was in tears. I mean, I felt no doubt that this was in retaliation for what I had been doing.

TOTENBERG: So Lane sued, contending that his First Amendment right of free speech had been violated when he was punished for his testimony. A federal appeals court ruled that under a 2006 Supreme Court decision, public employees have no free speech rights when they testify about information they learned on the job.

Today, in the Supreme Court, however, the justices signaled that the lower court had gone too far. Mark Waggoner, representing the former college president who fired Lane, repeatedly quoted back to the justices their own words from that 2006 opinion. He maintained that that 5-to-4 decision dictates that there is no First Amendment right to speak out or to testify about matters learned pursuant to a public employee's job duties.

But some of the very justices who signed on to that opinion sounded dubious.

Chief Justice Roberts: If you want to keep the corruption secret and he testifies truthfully and reveals it, can he be disciplined for that?

Answer: if the testimony is factual, based solely on his job duties, as it was here, and it's information that a citizen would not know, that only the testifier would know, then that is not protected speech under the Court's 2006 decision.

Chief Justice Roberts: Well, what's he supposed to do? He gets a subpoena, and he is asked by a prosecutor: What happened. He says, gosh, if I answer, I'm going to lose my job. And if I don't answer or answer falsely, there could be criminal penalties.

Pressed by Justices Kagan and Sotomayor, who did not participate in the 2006 ruling, lawyer Wagoner argued that an employee would be protected for opinion speech but not factual testimony based on his knowledge as an employee pursuant to his official duties.

Justice Scalia, incredulous: I don't know where you get that from. I've never heard of this distinction. The First Amendment protects only opinions and not facts? I never heard of it.

Even Justice Kennedy, the author of the 2006 Supreme Court decision, seemed to back away from it, declaring that he couldn't see how subpoenaed testimony would not be protected by the First Amendment. I just can't imagine such a case, he said.

But all was not smooth sailing either for Mr. Lane's lawyer, Tjindeh Singh. several justices of diverse ideologies suggested that the president of the college may be immune from suit in Lane's case because, at the time of the firing, the law was not clear.

A decision in the case is expected by the end of the Supreme Court term in late June.

Nina Totenberg, NPR News, Washington.

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