Last term the U.S. Supreme Court granted First Amendment protection to public employees who are subpoenaed to testify in a judicial proceeding. In Lane v. Franks1 the court held that a public employee’s truthful testimony pursuant to subpoena, on a matter of public concern, given outside of his ordinary job responsibilities, was protected speech for the purpose of his §1983 First Amendment retaliatory firing claim. In reaching this result the court in Lane found that the employee’s claim was not barred by the principle laid out in Garcetti v. Ceballos2—that public employee speech pursuant to an employee’s official responsibilities is categorically unprotected by the First Amendment. Justice Sonia Sotomayor wrote the opinion for a unanimous court. Justice Clarence Thomas filed a brief concurrence, joined by Justices Antonin Scalia and Samuel A. Alito Jr.

Edward Lane was the director of a community intensive youth training program, “CITY.” After auditing the program, he found that although Alabama State Representative Suzanne Schmitz was on CITY’s payroll, she had not been reporting for work. Lane terminated Schmitz’s employment, and she was indicted and ultimately convicted in federal court of several counts of mail fraud and theft concerning a program receiving federal funds. Lane had testified pursuant to subpoena both before the grand jury and at Schmitz’s criminal trial.3

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