Commentary: The fundamental constitutional principle not discussed in Lane v. Franks
First, the Free Speech Clause of the First Amendment (as incorporated through the Fourteenth Amendment) prohibits a supervisor in a state organization from firing an employee on the basis of that employee’s truthful testimony in a federal criminal trial when the employee was acting outside his ordinary job duties
Second, the supervisor in this particular case was entitled to qualified immunity, because the first holding, about the scope of the First Amendment, had not previously been “clearly established” by the case law of the Supreme Court or the U.S. Court of Appeals for the Eleventh Circuit.
All of that may well be correct. But it leaves out one important constitutional matter – namely, that a dismissal for such truthful testimony in federal court would almost certainly be unlawful, perhaps even unconstitutional, wholly apart from the First Amendment, and regardless of whether the employee was acting within the scope of his ordinary job duties.
The allegation in the case is that Franks, the president of the Central Alabama Community College, fired Lane because of the substance of his truthful testimony in a federal criminal trial. It’s hard to imagine Alabama law would permit Franks to make an employment decision on that basis. But even if it did, such retaliation for truthful testimony at a federal criminal trial would surely be a violation of federal law.
Depending upon the facts, for example, it might be a violation of federal statutes, such as the Civil Rights Act of 1871, which prohibits anyone from taking adverse job actions against a witness in order to try to influence testimony in a federal trial. Alternatively, if Alabama law actually authorized dismissal for such testimony in federal court, the Alabama law would then likely be preempted because it would “stand as an obstacle to the accomplishment and execution of the full purposes and objectives” of the federal laws establishing the criminal trial processes and requiring truthful testimony in such trials. After all, as Justice Sotomayor explained in her opinion for the Court, someone subpoenaed to testify in federal court “bears an obligation, to the court and society at large, to tell the truth,” and if such testimony could be the source of an adverse job action, the employee would be put “in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep [his] job.” Moreover, even apart from inconsistency with federal statutes, such a dismissal could well be an unconstitutional state interference with legitimate federal functions, analogous to Maryland’s tax on the federal bank in McCulloch v. Maryland or California’s arrest of a federal marshal for taking authorized actions to protect the life of a Supreme Court Justice in In re Neagle.
The fact that the firing would plainly be unconstitutional (or preempted) on such federal supremacy grounds might not bear upon the qualified immunity holding in Lane, because the Court has held that a plaintiff who seeks damages for violation of a federal right can overcome the defendant official’s qualified immunity only by showing that those particular rights were clearly established at the time of the conduct at issue. By the time his case reached the Supreme Court, Lane’s claim was limited to the First Amendment — he was not pressing any interference-with-federal-functions claim. (And it’s not obvious that any such claim could support a suit for damages.)
Even so, one passage of the Court’s opinion might inadvertently leave the mistaken impression that it would have been reasonable for a supervisor to conclude that he could lawfully punish an employee for that employee’s truthful testimony in a federal trial. Justice Sotomayor tees up the qualified immunity question this way:
The relevant question for qualified immunity purposes is this: Could Franks reasonably have believed, at the time he fired Lane, that a government employer could fire an employee on account of testimony the employee gave, under oath and outside the scope of his ordinary job responsibilities?
The Court answers this question in the affirmative – hence, its holding that Franks is entitled to qualified immunity. And that answer might well be correct if the question were slightly rewritten to read:
Could Franks reasonably have believed, at the time he fired Lane, that the Free Speech Clause prohibits a government employer from firing an employee on account of testimony the employee gave, under oath and outside the scope of his ordinary job responsibilities?
Unfortunately, however, the Court’s formulation of the question is not so limited, and therefore the Court’s answer to the question might suggest that the ultimate legality of the firing was a close question under federal law more broadly. As I explain above, that’s not right: A state cannot punish one of its employees for performing the important civic function of testifying truthfully in the federal criminal process – especially where that employee was under a federal duty to do so, having been subpoenaed to testify.
It’s understandable that the Justices did not consider the interference-with-federal-functions angle in Lane, because it was not presented to them and would not have been germane to the qualified immunity question that they considered about the state of First Amendment doctrine.
It is important to emphasize, however, that even in a case where money damages are not at stake, or a case in which the employee would lack a valid First Amendment claim because he testified within the scope of his job duties, there can be little doubt that a state supervisor could not lawfully fire an employee based on the fact that the employee testified truthfully in a federal trial, except perhaps in unusual circumstances (such as when the employee, in Justice Sotomayor’s words, “unnecessarily disclose[s] any sensitive, confidential, or privileged information while testifying”).
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as counsel to the petitioner in this case. However, the author of this post is not affiliated with the firm.]