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Supreme Court Provides New Clarity, Protection for Public Employee Whistleblowers

Supreme Court unanimously affirms the First Amendment protects public employees from workplace retaliation for providing testimony or participating in workplace investigations.

It's counterintuitive, but public employee whistleblowers (particularly state employees) have had some of the weakest protection from retaliation of any worker. Over the last decade, lower courts have applied an increasingly expansive standard to the Supreme Court's 2006 opinion in Garcetti v. Ceballos . In some lower courts the "Garcetti exception" allowing employer discipline for work related speech has been read so large as to swallow the promise of the First Amendment protections entirely. Sadly, trend-watchers have increasingly concluded that government workers effectively leave their free speech protections at the door. At the same time, other whistleblower protection laws have counted government employees out. For instance in Michigan, the state's Whistleblower Protection Act explicitly exempts state civil service employees from protection. And the State Tort Claims Act immunizes the state from common law claims for discharge in violation of public policy. Not surprisingly, many government workers have been reluctant to come forward to expose fraud for fear of retaliation.

The Supreme Court's recent unanimous decision in Lane v. Franks provides much needed clarity and a breakwall against over-expansive readings of the Garcetti exception. Justice Sotomayor, writing for the Court:

In other words, the mere fact that a citizen's speech concerns information acquired by virtue of his public employment does not transform that speech into employee-rather than citizen-speech. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties.

It bears emphasis that our precedents dating back to Pickering have recognized that speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment.

The Plaintiff in Lane was a Director of a Community College program for at-risk youth who had discovered and reported misuse of public funds by an employee. Lane alleged that his later termination was in retaliation for providing courtroom testimony that convicted the employee. The public employer community college argued that Lane was not entitled to First Amendment protections because his speech - courtroom testimony - was job related and not on a matter of public concern. Rejecting those arguments, the Court affirmed that whether speech is a matter of public concern turns on the "content, form, and context" of the speech. Corruption in a public program and misuse of state funds involve matters of significant public concern. As part of that analysis, the form and context of the speech-sworn testimony in a judicial proceeding-served to fortify that conclusion.

The Lane opinion provides welcome clarity for public employee whistleblowers who have been understandably afraid to come forward. The ruling will have a direct impact on the willingness and ability of government employees to report public corruption and fraud where they work. The brave work of whistleblowers can continue to foster a more efficient, more transparent, more honest form of government at all levels.

David Blanchard is a Michigan Employment and Civil Rights Lawyer practicing in Ann Arbor, Michigan at the firm of Nacht, Roumel & Walker P.C.

For questions about this Article or on developments in legal status of whistleblower and first amendment law, the author can be contacted through http://www.nachtlaw.com

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