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Public employee testimony protected by First Amendment

Cases involving whistleblowing are always in tension. Employees, whether public or private, are expected to follow instructions of supervisors and managers, and owe a duty of loyalty towards their employers. At the same time, when employees observe wrongdoing, illegal behavior or corruption, they have an obligation as a citizen to report or testify concerning the matter.

While this seems obvious, a U.S. Supreme Court case last week helped clarify some of the details of a situation where a public employee testifies and is then fired, in apparent retaliation for that testimony.

A man, Lane, who was a director of a program at a community college, discovered a state legislator was on the payroll of the program, but did nothing. He reported it and fired her. After the legislator had been convicted of corruption and sentenced to prison, Lane and 28 other employees were laid off, ostensibly due to financial troubles at the college.

A few days later, all but Lane and one other man were rehired. He claimed his First Amendment rights had been violated, as he had been compelled by subpoena to testify at the trial.

The courts, however, found that since he was acting in his official capacity when he testified, he had no First Amendment protection. A unanimous Supreme Court overturned the lower court decisions and found that a citizen testifying at a trial is "a quintessential example of citizen speech," and that speech is protected under the First Amendment.

Cases involving whistleblowing are complex, and this case has changed the precedent other courts relied on. Anyone who comes across questionable or illegal conduct in the course of his or her federal employment should consider speaking with an employment law attorney, as this case might change how he or she should proceed.

Source: NPR.com, "Supreme Court Sides With Whistleblower In Retaliation Case," Bill Chappell, June 19, 2014

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