Deputy Solicitor General Ian Gershengorn

The Supreme Court heard arguments today over whether public employee who testify under subpoena at public corruption trials should be protected by the First Amendment. The position of President Barack Obama’s administration appears to be that they should not be protected.

The case is Lane v. Franks and it involves Edward Lane, who according to NPR was “hired in 2006 to head a program for juvenile offenders” at Central Alabama Community College that provided “counseling and education as an alternative to incarceration.” The program “received substantial federal funds.”

Lane conducted an audit and discovered that one of the program’s “best-paid employees, a state representative named Suzanne Schmitz, was not showing up for work.” He met with her and was told that he shouldn’t “tangle” with her because she had influence. He refused to be complicit and fired Schmitz.

The FBI was investigating “public corruption in Alabama” and Lane was subpoenaed to testify before a grand jury and at Schmitz’s two trials. She was convicted of “fraudulently obtaining $177,000 in public funds.” Yet, Lane never received any reward for his role. He was, instead, fired and decided to sue because he believed his termination was retaliation for testifying. It violated his First Amendment rights.

Ian H. Gershengorn, deputy solicitor general for the Justice Department, argued against extending First Amendment protection to public employees who are subpoenaed to testify. In fact, he suggested that a police officer who testified on a search warrant in court could be fired for providing testimony.

“We think that, for example, a police officer whose job it is to investigate and testify about what he saw to support a warrant or something,” Gershengorn argued. “It would still be part of his job responsibilities. The fact of the subpoena doesn’t change that a technician or officer or an investigator may be called to testify as part of his duties.”

“So you could fire him because he testified?” Chief Justice John Roberts asked.

Gershengorn replied, “Your Honor, there is a range of disciplinary activities that would be available to employees.”

The Justice Department imagines that if the Supreme Court rules in favor of Lane they will not be able to judge or evaluate the performance of employees because those employees could claim their First Amendment rights were violated. But there is something called the “Pickering balance,” which would still remain in effect making it possible to fire an employee if he or she was incompetent, disorderly or displayed poor judgment when testifying.

Justice Sonia Sotomayor asked, “What are you doing about the truth finding functions of a trial setting when you’re saying or telling people, employee, don’t go and tell the truth because if the truth hurts your employer you’re going to be fired?” And, “What kind of message are we giving when we’re telling employees, [who are] subpoenaed [for] any reason in a trial, go and tell a falsehood otherwise you can be fired?”

Roberts really had a tough time grappling with this position the Obama administration endorsed.

“I still don’t understand or didn’t understand what it is you’re saying. If he testifies, and you don’t want to keep the corruption secret. You know, you don’t want to reveal it and he testifies truthfully and reveals it. Can he be disciplined for this?” Roberts asked Mark Waggoner, an attorney representing Steve Franks, the college president.

If it was testimony that was “factual, based solely on the job duties, as it was here, inseparable from the job duties, and it is information that a citizen would not know,” it would not be protected speech, Waggoner argued.

Roberts said, “Well, what is he supposed to do?  I mean, he gets a subpoena, and the other side or somebody, this independent counsel, says, you know, what’s going on?  What do you know about, you know, from your job responsibilities? What happened or did you—is this person taking money? Is this person showing up? What’s he supposed to do?”

“He says, gosh, if I answer, I’m going to lose my job or could, and if I don’t or answer falsely—the Fifth Amendment protects him from incriminating himself. It doesn’t protect the department he works for from being incriminated.”

“We would never suggest that anybody not comply with a subpoena, comply with an investigation or testify truthfully,” Waggoner claimed.

Roberts replied, “But you are suggesting he can be fired if he does it.” Waggoner added, “If it does not offend the First Amendment, and we believe that’s why we’re here.”

To the defense attorney representing Franks and the deputy solicitor general arguing the Obama administration’s position, they would like a whole category of speech to be deemed off-limits to employees who wish to keep their jobs in government. They contend that “factual testimony based only on knowledge that an employee has pursuant to their official duties” should not be protected. It is not information that an average citizen would know. Only as employees do they know that information.

Such a rationale could be used to not only fire employees who testify in court but also employees who write newspaper articles or give interviews to the press.

It is but another way that the Obama administration supports measures that make it possible to crack down on whistleblowers.

What the American Civil Liberties Union argued in its amicus brief submitted clearly outlines how this position by the Obama administration discourages individuals from coming forward to testify in public corruption trials.

“A public official who has information that is relevant to an ongoing public corruption investigation may come forward and speak to the FBI if she can be confident that the government will later compel her testimony under subpoena, so as to insulate her from retaliatory action. But far more likely, uncertainty in the law—combined with the fact that the employee’s job hangs in the balance—will dissuade the employee from coming forward altogether,” the ACLU’s brief declares.

“Sworn statements relevant to a judicial proceeding always advance the judiciary’s truth-seeking function, and always fulfill an individual’s civic responsibility.” They should be protected by the First Amendment. Unfortunately, the Obama administration believes it must have the power to retaliate and dissuade employees from engaging in speech that might embarrass or reflect poorly on the government.