The Eleventh Circuit’s brief per curiam opinion in Lane v. Franks held that Edward Lane, an employee at a community college program, had no First Amendment protection for his subpoenaed testimony. In oral argument, there was little support for that conclusion. Only one of the four advocates argued for unqualified affirmance, and none of the Justices seemed inclined to fully embrace the Eleventh Circuit’s determination.
But how completely will the Eleventh Circuit’s decision be reversed? The contours of any correction pose two major issues.
First, there is the problem of the breadth of a resulting First Amendment rule. It would be difficult to find more sympathetic facts for the protection of a public employee. After Edward Lane became the director of a program for at-risk youth at Central Alabama Community College (CACC), he looked at the program’s finances and soon discovered a state representative was on the payroll. He also discovered she had never done any work for the program. His superiors, including an attorney for the college, advised him to let well enough alone. But he terminated the state representative when she refused to show for work; she vowed to retaliate. She was eventually indicted and Lane testified before a federal grand jury and — pursuant to a subpoena – at her two federal criminal trials for mail fraud and fraud involving a program receiving federal funds. He was terminated between the two trials.
While Lane seems a stellar employee, as the Alabama Attorney General Luther Strange all but admitted, there were concerns about other employees who might be protected by a bright-line rule protecting testimony. What if the employee is a lab technician who testifies as part of his job duties? Can the employer discipline him if the employee cannot perform this part of his job? Or if, as Justice Sotomayor asked, the employee “comes to court dressed in a clown suit”? Should the subpoena be the deciding factor? Arguing for Edward Lane, Tejinder Singh suggested a narrow holding that essentially reasserted Garcetti v. Ceballos and Pickering v. Board of Education, subject only to the clarification that even when a public employee’s testimony “describes facts that the employee learned in the course of his employment, it’s still protected.” Singh did articulate the “strong version of the First Amendment” rule that would protect testimony based on a “separate and superior obligation to testify truthfully to the court,” but he made clear he did not advocate its adoption. Deputy Solicitor General Ian Gershengorn, appearing on behalf of the federal government as an amicus, argued that such a broad rule would intrude on the government’s ability to supervise its own employees, especially those who testified as part of their employment.
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