On the other hand, the Court has generally accepted that the government as employer must have more authority over government employee speech than the government as sovereign has over citizen speech. As the plurality noted in Waters v. Churchill (1994) (some paragraph breaks added),
“The First Amendment demands a tolerance of ‘verbal tumult, discord, and even offensive utterance,’ as ‘necessary side effects of … the process of open debate,’ Cohen v. California, 403 U.S. 15, 24-25 (1971). But we have never expressed doubt that a government employer may bar its employees from using Mr. Cohen’s offensive utterance to members of the public or to the people with whom they work.
“‘Under the First Amendment there is no such thing as a false idea,’ Gertz; the ‘fitting remedy for evil counsels is good ones,’ Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). But when an employee counsels her co-workers to do their job in a way with which the public employer disagrees, her managers may tell her to stop, rather than relying on counterspeech.
“The First Amendment reflects the ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’ New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). But though a private person is perfectly free to uninhibitedly and robustly criticize a state governor’s legislative program, we have never suggested that the Constitution bars the governor from firing a high-ranking deputy for doing the same thing. Cf. Branti v. Finkel, 445 U.S. 507, 518 (1980).
“Even something as close to the core of the First Amendment as participation in political campaigns may be prohibited to government employees. Broadrick v. Oklahoma, 413 U.S. 601 (1973).”
The government thus needs to be able to restrict some speech in order to get its job done more effectively. What’s more, nearly every fired or disciplined employee could plausibly argue that part of the real reason for the government action was actually the employee’s speech to clients or coworkers or supervisors; providing broad First Amendment protection to speech by government employees would thus turn nearly every employment action into a potential lawsuit. And for employees whose very job is speech — such as government lawyers — the evaluation of the employee’s job performance will necessary involve content-based (and sometimes viewpoint-based) judgments about what the employee says.
For these reasons, the Court has set up the following test for government disciplinary actions (firing, demotion, and the like); this probably also applies for government refusals to hire or promote, though litigation over that is rarer:
Government retaliation against government employee speech violates the First Amendment if:
1. the speech is on a matter of public concern, and
2. the speech is not said by the employee as part of the employee’s job duties, Garcetti v. Ceballos, 547 U.S. 410 (2006), and
3. the damage caused by the speech to the efficiency of the government agency’s operation does not outweigh the value of the speech to the employee and the public (the so-called Pickering balance). Connick v. Myers (1983) (p. 567).
Thus, if the speech is on a matter of private concern, or the speech is said as part of the employee’s duties, the government can do what it pleases. Likewise, if the government prevails on the Pickering balance, it can do what it pleases.
Relatedly, the government generally may not discriminate in employment or contracting based on the employee’s membership in an expressive association. Elrod v. Burns, 427 U.S. 347 (1976) (firing); Branti v. Finkel, 445 U.S. 507 (1980) (firing); Rutan v. Republican Party, 497 U.S. 62 (1990) (applying Elrod and Branti to hiring); O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996) (applying the government employee cases to government contracting decisions). But the interest in employees’ political loyalty may justify such discrimination when “party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti.
There is much that can be criticized about this test. The Court’s attempts to define “speech on a matter of public concern” have been quite opaque. The Pickering balance, unsurprisingly, is also hard to predict. And Garcetti, a 5-4 decision, has been heavily criticized. Nonetheless, this is the rule.
In any event, today’s Supreme Court decision in Lane v. Franks applies these rules, and in the process in some small measure reaffirms government employee speech protection. Edward Lane was subpoenaed by the government to testify at a criminal trial, stemming from alleged misconduct — not his own — at his job, Central Alabama Community College’s Community Intensive Training for Youth (of which he was the director):
Lane … conduct[ed] a comprehensive audit of the program’s expenses. The audit revealed that Suzanne Schmitz, an Alabama State Representative on CITY’s payroll, had not been reporting to her CITY office. After unfruitful discussions with Schmitz, Lane shared his finding with CACC’s president and its attorney. They warned him that firing Schmitz could have negative repercussions for him and CACC.Lane nonetheless contacted Schmitz again and instructed her to show up to the Huntsville office to serve as a counselor. Schmitz refused; she responded that she wished to “‘continue to serve the CITY program in the same manner as [she had] in the past.’” Lane fired her shortly thereafter. Schmitz told another CITY employee, Charles Foley, that she intended to “‘get [Lane] back’” for firing her. She also said that if Lane ever requested money from the state legislature for the program, she would tell him, “‘[y]ou’re fired.’”Schmitz’ termination drew the attention of many, including agents of the Federal Bureau of Investigation, which initiated an investigation into Schmitz’ employment with CITY. In November 2006, Lane testified before a federal grand jury about his reasons for firing Schmitz…. [At] Schmitz’ trial, which garnered extensive press coverage, … Lane testified, under subpoena, regarding the events that led to his terminating Schmitz. The jury failed to reach a verdict. Roughly six months later, federal prosecutors retried Schmitz, and Lane testified once again. This time, the jury convicted Schmitz on three counts of mail fraud and four counts of theft concerning a program receiving federal funds. The District Court sentenced her to 30 months in prison and ordered her to pay $177,251.82 in restitution and forfeiture.
Lane was later fired by his employer, and he claimed this was in part because of his testimony. (The employer claimed Lane’s dismissal came because of the program’s budget financial problems.) Lane sued, arguing in part that the testimony was First-Amendment-protected speech.
The Eleventh Circuit held that Lane’s First Amendment case couldn’t go forward, because it wasn’t speech in his role as citizen, but rather speech in his role as employee (see item 2 above, citing Garcetti v. Ceballos):
That Lane testified about his official activities pursuant to a subpoena and in the litigation context, in and of itself, does not bring Lane’s speech within the protection of the First Amendment.. Furthermore, because formal job descriptions do not control, that Lane’s official duties did not distinctly require him to testify at criminal trials falls short of triggering First Amendment protection.Although not dispositive, we consider it pertinent that the subject matter of Lane’s testimony touched only on acts he performed as part of his official duties…. [N]nothing evidences that Lane testified at Schmitz’s trial “primarily in [his] role as a citizen” or that his testimony was an attempt to comment publicly on CITY’s internal operations.
But the Supreme Court disagreed; the main takeaway from the Court’s decision was this (paragraph breaks rearranged):
“The sworn testimony in this case is far removed from the speech at issue in Garcetti — an internal memorandum prepared by a deputy district attorney for his supervisors recommending dismissal of a particular prosecution…. Garcetti said nothing about speech that simply relates to public employment or concerns information learned in the course of public employment. The Garcetti Court made explicit that its holding did not turn on the fact that the memo at issue ‘concerned the subject matter of [the prosecutor’s] employment,’ because ‘[t]he First Amendment protects some expressions related to the speaker’s job.’
“In other words, the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee — rather than citizen — speech. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties….
“[O]ur precedents dating back to Pickering have recognized that speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment. In Pickering, for example, the Court observed that ‘[t]eachers are … the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.’ …
“The importance of public employee speech is especially evident in the context of this case: a public corruption scandal. The United States, for example, represents that because ‘[t]he more than 1000 prosecutions for federal corruption offenses that are brought in a typical year … often depend on evidence about activities that government officials undertook while in office,’ those prosecutions often ‘require testimony from other government employees.’
“It would be antithetical to our jurisprudence to conclude that the very kind of speech necessary to prosecute corruption by public officials — 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.”
The Court also stressed the narrow scope of its decision: “It is undisputed that Lane’s ordinary job responsibilities did not include testifying in court proceedings. For that reason, Lane asked the Court to decide only whether truthful sworn testimony that is not a part of an employee’s ordinary job responsibilities is citizen speech on a matter of public concern.. We accordingly need not address in this case whether truthful sworn testimony would constitute citizen speech under Garcetti when given as part of a public employee’s ordinary job duties, and express no opinion on the matter today.”
(Note that the Court nonetheless concluded that Lane couldn’t recover damages under this theory, because the defendant was shielded by qualified immunity — since then-existing Eleventh Circuit precedent had held that testimony such as Lane’s wasn’t constitutionally protected against government retaliation, a reasonable employer wouldn’t have realized that his actions violated the First Amendment.)
In any event, the Court doesn’t break any new ground here but mostly applies the existing tests, reaffirms them, and in the process says some things that are friendly to government employee speech rights. The law here remains as vague and complicated as it had been before — though at least it doesn’t get any more so.