The U. S. Supreme Court has taken a step in the right direction for public employee whistleblowers.
The Court’s June 19 decision in Lane v. Franks reiterates that citizens don’t surrender First Amendment rights by accepting public employment and that First Amendment protection of a public employee’s speech requires balancing “the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
Lane is an example of the aphorism that while bad facts make bad law, good facts make good law.; Lane headed a statewise program for underprivileged youth in Alabama. The program had financial difficulties. Lane fired a well-connected Alabama State Representative who vowed revenge. That employee was later indicted for mail fraud and Lane testified at her trial.
The narrow question in the case was whether the First Amendment protects a public employee who provides truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job reasponsibilities. The Supreme Court answered that question “yes.”
The high court’s pronouncement that speech about information related to or learned through public employment is protected marks a welcome development. The Court states, “public employees do not renounce their citizenship when they accept employment, and this Court has cautioned time and again that public employers may not condition employment on the relinquishment of constitutional rights.”
Eight years ago the Court had undermined whistleblower protection when it ruled in Garcetti v. Ceballos that when public employees make statements pursuant to their official duties, they aren’t speaking as citizens for First Amendment purposes. The Lane case doesn’t overrule Garcetti but it does say, “It would be antithetical to our jurisprudence to conclude that the very kind of speech necessary to prosecute corruption by public official — speech by public employees regarding information learned through their employment — may never form the basis for a First Amendment retaliation claim. Such a rule would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.”
America needs watchdogs both outside and inside government. The Lane case is a good development for watchdogs within government.