Public employees deserve protection when they testify

Friday, May 11, 2012

Public employees have not fared well in the First Amendment world at least since the Supreme Court’s 2006 ruling in Garcetti v. Ceballos. In that decision, the Court created a categorical rule that when public employees engage in speech related to their official job duties, they have no First Amendment protection. The Court said public employees retain free-speech rights on the job only when they speak as citizens.

Fortunately, some lower courts have recognized that public employees do engage in citizen speech — as opposed to unprotected official job-duty speech — when they testify in a deposition or in court after being subpoenaed. The latest federal appeals court to acknowledge this distinction was the 9th U.S. Circuit Court of Appeals in Karl v. City of Mountlake Terrace.

Public employee Martha Karl worked as the administrative assistant to the chief of police in Mountlake Terrace, Wash. Subpoenaed to testify in a deposition in a civil rights lawsuit filed by a former police sergeant, Karl gave testimony that her superiors perceived as unfavorable to the city. After her testimony, she was transferred and later fired — ostensibly for other reasons, but some evidence showed that the real reason was her testimony. Karl filed a First Amendment retaliation lawsuit. She alleged in part that an assistant police chief set in motion the plans to terminate her.

This assistant police chief pleaded qualified immunity, under which doctrine government officials can avoid liability if they don’t violate clearly established constitutional law. A federal district court rejected the assistant chief’s qualified-immunity bid, reasoning that Karl spoke as a citizen in giving deposition testimony.

A three-judge panel of the 9th Circuit agreed in its May 8 opinion, affirming the district court’s view that Karl spoke more as a private citizen than a public employee when she testified.

Good call. It is everyone’s civic duty to testify when subpoenaed. It would be a horrible injustice if public employees could face retaliation for testifying in open court or in a deposition. The threat of adverse consequences might encourage employees to be less than truthful in sworn testimony.

Even the U.S. Supreme Court in its wretched Garcetti decision acknowledged that public employees have some level of free-speech protection at work, writing that “employees retain the prospect of constitutional protection for their contributions to the civic discourse” and “the First Amendment protects some expressions related to the speaker’s job.”

The First Amendment should protect public employees in their truthful performance of such basic civic duty.

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