ADF: Govt shouldn’t fire employees for testifying truthfully in court
Because of the lack of clarity, various courts treat employee speech differently. In fact, some government employers are allowed to retaliate against their employees by broadly defining their speech as part of their “job duties” even when it does not disrupt the government’s business operations.
“No one should be fired or suffer other kinds of retaliation for speech outside the workplace, especially when they are testifying truthfully in court,” said Alliance Defending Freedom Senior Legal Counsel David Hacker. “We see all too often that public universities and colleges place political litmus tests on employees. But as the Supreme Court has affirmed time and time again, Americans do not lose their First Amendment freedoms when they accept a government job.”
“While the government can generally expect consistency in the message its employees communicate on its behalf, the government goes too far when it retaliates against an employee simply because he obeyed the law by testifying under subpoena to expose wrongdoing,” explained Alliance Defending Freedom Senior Counsel Kevin Theriot. “That kind of testimony does not disrupt the government employer’s basic functions. Indeed, it assists in promoting truth and integrity in the workplace.”
The case, Lane v. Franks, involves Central Alabama Community College, which fired a staff member after a federal court subpoenaed him to testify in a lawsuit concerning fraud by a state legislator. The college claimed that the staff member was speaking as an employee at the trial, and because he did not say what the college wanted him to say, it fired him. The employee, Edward Lane, was the director of the college’s after-school program for at-risk youth when he discovered that the senator was drawing a salary from the program but wasn’t doing any work.
According to the Alliance Defending Freedom brief, the lack of a definition for what constitutes an employee’s job duties “gives employers a get-out-of-jail-free card: unless employees can provide a compelling reason for protecting their speech, employers may take any adverse employment action and not fear accountability under the First Amendment because they can define the employee’s speech as part of his job duties…. Public employees deserve more protection; after all, they do not forfeit their First Amendment rights when they accept public employment.”