Justice Scalia’s Curious Memory Lapse. NO, not the one everyone’s talking about. [Post typo-corrected]

Clarification appended below.


During oral arguments in a freedom-of-speech case out of Alabama, several justices challenged the notion that public employees who testify truthfully about an issue of significant public concern aren’t shielded from retaliation by the First Amendment.

“What kind of message are we giving when we’re telling employees, you’re subpoenaed in a trial, go and tell a falsehood because otherwise you can be fired?” Justice Sonia Sotomayor asked attorneys in the case.

The Fifth Amendment protects state employees against self-incrimination on the witness stand, but “it doesn’t protect the department he works for from being incriminated,” Chief Justice John Roberts said.

Justices suggest public employees’ testimony is protected, Mary Orndorff Troyan, USA Today, today

It’s nice to know that the Fifth Amendment doesn’t protect the department he works for from being incriminated.  It would be nicer still to know that the First Amendment, so vaunted these days by the Supreme Court as allowing the purchase of legislative votes as long as there’s no formal purchase receipt issued by the legislator/seller, that that Amendment protects the truthful speech of public-employee whistleblowers, and not just the speech of public employees who don’t want to speak in support of big government by being compelled to pay a fee to the union that is negotiating the terms of their employment (pay, benefits, working conditions) and that will represent them in disputes with the employer.  (Okay, the last part of that compound sentence is based on a comment by Alito during argument in January in a case called Harris v. Quinn.  The opinion in the case hasn’t been issued yet.)

Troyan summarizes the background in the case argued yesterday, Lane v. Franks:

The case involves an employee at Central Alabama Community College whose testimony helped convict former Alabama state representative Sue Schmitz of corruption-related charges. The employee, Edward Lane of Ashville, was fired after he testified at Schmitz’s first trial in 2008.

Before Lane gets a chance to prove in court his firing was retaliatory, the Supreme Court must decide if his testimony is protected speech under the First Amendment.

Lane, who attended Monday’s arguments, was surprised that’s even in doubt.

“I thought for sure that being able to go testify truthfully in court that I should be protected,” he said in an interview on the Supreme Court steps after Monday’s arguments. “And to find out (the other side) actually thinks that is not the case — that just blows me over.”

Ah, but that’s because Lane was unaware of the 2006 opinion in Garcettti v. Ceballos.  The second one issued, that is, less than a month after* Samuel Alito was sworn in as Sandra Day O’Connor’s replacement; not the first one issued, in the last few days before O’Connor formally retired. (Yes, as I explain in that post of mine from last January that I linked to above, Garcettti v. Ceballos has quite an interesting little twist to it, procedurally.)

Anyway, as Troyan continues:

Steve Franks, former president of the two-year college, says Lane’s testimony wasn’t protected by the First Amendment. His attorney, Mark Waggoner of Birmingham, argued Monday that Lane’s testimony was based on information he gleaned only from his job and that he was testifying as a state employee, not a regular citizen.

“If the testimony is factual, based solely on the job duties, as it was here, inseparable from the job duties, and it is information that a citizen would not know, that only the testifier would know, then that is not protected speech,” Waggoner told the justices.

And then a surprise:

Justice Antonin Scalia took issue with treating opinionated speech differently from speech that is strictly factual.

“I’ve never heard of this distinction, the First Amendment protects only opinions and not facts,” Scalia said. “I’ve never heard of it.”

Well, it’s been eight full years since Garcetti was decided, so I guess this memory lapse by Scalia doesn’t a suggest short-term memory problem.  Mid-term, maybe, but not short-term. Or maybe there’s some distinction between opinion and fact, on the one hand, and a prosecutor’s telling his bosses that there’s evidence that a police officer fabricated evidence to support a search warrant.  Yeah, that must be it!  Or maybe this ruling is to protect the freedom of the criminal suspect and the prosecutor. Ah. That’s what it must be, now that we have the First Amendment right to redefine freedom as we choose.  At least if we are Supreme Courts justices, Republican politicians, or people whose cause the Supreme Court’s conservative majority or Republican politicians share.  Or, regarding the latter, must appear to share.

Well, there’s even more good news in this case.  Troyan reports that state and federal government lawyers have sided with Lane on the First Amendment issue:

Alabama Attorney General Luther Strange, who represents the current president of Central Alabama Community College in the case, said state employees need to know it’s safe for them to step forward with information about abuse of taxpayer funds.

“We depend on people like Mr. Lane … who are willing to and need to be able to testify in cases involving public corruption,” Strange said.

Then again, she also reports:

A lawyer for the Justice Department, however, argued against giving all public employees blanket free-speech protections. Some government employees have jobs that regularly require them to investigate corruption or testify in court, Deputy Solicitor General Ian Gershengorn said. If their work is substandard, he said, they should be held accountable.

“The government shouldn’t be disabled from being able to judge and evaluate the performance of its employees,” Gershengorn said.

Indeed! At least not when the performance of its employees undercuts some powerful insider’s or law enforcement officer’s ability to break the law.  Freedom!

*Typo-corrected to say “after” rather than “before” (a cut-and-paste sentence-editing error).  The withdrawal of the original opinion, which had not yet become final, and its replacement with an opinion with a contrary result, was, I believe, the first public pronouncement by the Court in which Alito’s participation was specified.


CLARIFICATION: In light of an exchange between reader Dale Coberly and me in the Comments thread, I think I should I say that I’m pretty darned sure that Roberts’ Fifth Amendment comment was sarcastic.  To my knowledge, the defendant is not claiming that the government has a Fifth Amendment right to have its employees remain silent in order to not incriminate the government. The government is arguing only that the employee’s truthful testimony is not protected by the First Amendment, so the employee can be fired for his testimony.

I don’t think the government in that case is asking that state agencies be read their Miranda rights. 4/30 at 11:45 a.m.