In an amicus brief filed in the US Supreme Court this week, the First Amendment Coalition urged the Court to clarify and expand the free speech rights of government employees when speaking out on matters that relate to their job. The case is Lane v. Franks, which will be decided in the next three months. FAC’s brief, focusing on the importance of protecting true speech in First Amendment jurisprudence, was written by eminent First Amendment and media lawyer, Floyd Abrams.
The case concerns an employee of an Alabama state agency who lost his job after testifying truthfully in federal judicial proceedings about misconduct in his agency. The federal Court of Appeals (for the 11th federal circuit), in a brief, unpublished decision, ruled that the employee had no recourse under the First Amendment because the comments that resulted in his dismissal concerned his job and information he learned in his job.
The appeals court’s narrow view of employee free speech rights, based on a 2006 Supreme Court decision, Garcetti v. Ceballos, 547 US 410, is not as bizarre as it seems. The Garcetti decision has been seen as stripping government employees of all First Amendment protection, except for comments made in their private capacity (as citizens, not government workers) about public issues wholly unrelated to their jobs.
The Lane v. Franks case tests the limits of the categorical, on-off rule of constitutional interpretation that was applied in Garcetti. We think (hope) that the Court chose to review the Lane v. Franks case to reverse the appeals court and clarify the Garceti decision in a way that permits First Amendment protection for true speech by government employees, at least in circumstances where the speech serves a public or governmental interest.
FAC’s brief, available below, was written by Mr. Abrams and his colleagues Landis Best, Sogol Somekh and Stacy Zyzyck at Cahill Gordon & Reindel in New York.–PS
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