Justice Scalia’s Curious Memory Lapse. NO, not the one everyone’s talking about. [Post typo-corrected]
Clarification appended below.
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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.
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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.
beverly
i agree with your despair over the ability of the court to twist the law to mean whatever it wants to mean in a particular situation… but the opinion of this court cannot be used as precedent in any future similar case.
however i believe the history behind the fifth amendment , as well as my own view of decent human behavior, suggests that it be interpreted to mean that a witness may refuse to testify about anything that would put her in a conflict with her own conscience.
this might allow some criminals to get away, including some official criminals, but then again it might force prosecutors to do their homework instead of just threatening witnesses… as, say, they did in the case of Monica Lewinsky.
on the other hand, witnesses should also be protected from retaliation by their employer, especially if their employer is the government.
This is a First Amendment case, Dale, not a Fifth Amendment case, and it absolutely will be used as precedent. The attempt by the defendant to turn this into a state-agencies-are-people-and-have-Fifth-Amendment-rights claim is ridiculous.
Beverly
not being a lawyer i can look with absolute contempt at
“this is not a fifth amendment case….”
maybe it should be. as for turning the states agencies into people, you complete misread what i was saying.
ridiculous is one of those words that tell me people aren’t thinking hard enough.
It seem to me Obama is doing his best to out due Bush II, and not in a good sense.
“Obama Administration Argues in Favor of Right to fire Public Employees Who Testify at Corruption Trials
“We would never suggest that anybody not comply with a subpoena, comply with an investigation, or testify truthfully,” Waggoner claimed. And Roberts replied, “But you are suggesting he can be fired if he does it.
If it does not offend the First Amendment, and we believe that’s why we’re here,” Waggoner added.”
More information …..http://dissenter.firedoglake.com/2014/04/28/obama-administration-argues-in-favor-of-right-to-fire-public-employees-who-testify-at-corruption-trials/
Ooops. Dale, I’m actually 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.
As someone whose stock-in-trade is sarcasm, and who’s regularly disappointed that someone or other reads her facetious comments as regular statements, I should have recognized it as sarcasm instantly. Well, actually, I did when I read that article, but then later in responding to your comment I forgot that. Ah, what a glass of Malbec with dinner will do (to me).
Anyway, there’s not much likelihood that state agencies will have to be read their Miranda rights once the opinion in this case is issued.
Beverly
i took off from your comments about the fifth amendment to make my own perennial comment about the fifth, which i take very seriously. i am not sure that the first amendment does protect employees from being fired for their free speech… but i am pretty sure that in a sane and decent country that would not be allowed.
the rest of my comment was to take issue with your and the court’s amazing ability to compartmentalize the “logic” of a case when there is a crying injustice that needs to be addressed.
if it helps, you should know that i am essentially on your side, you are a good person and you like dogs.
I was puzzled when reading the first few sentences of this post, because I had assumed it was about *another* amazing Scalia memory lapse. The other unrelated astonishing error was Antonin Scalia’s totally incorrect citation of an opinion written by emminent Jurist uh Antonin Scalia
http://talkingpointsmemo.com/dc/antonin-scalia-error-supreme-court-dissent-epa
“”Scalia’s dissent also contains a hugely embarrassing mistake. He refers to the Court’s earlier decision in American Trucking as involving an effort by EPA to smuggle cost considerations into the statute. But that’s exactly backwards: it was industry that argued for cost considerations and EPA that resisted,” Farber wrote on the environmental law and policy blog Legal Planet. “This gaffe is doubly embarrassing because Scalia wrote the opinion in the case, so he should surely remember which side won! Either some law clerk made the mistake and Scalia failed to read his own dissent carefully enough, or he simply forgot the basics of the earlier case and his clerks failed to correct him. Either way, it’s a cringeworthy blunder.””
Wow. Too bad supreme court justices can’t be impeached for senility (or for the standard conduct of signing opinions and dissents actually written by their clerks). Too much worse that no Republican will be impeached ,while Republicans control the House, or convicted, while there are 34 of more Republican senators. But two amazing howlers in about a week must be one for the history books.
Robert, yeah, when I wrote the post and the title two days ago, I didn’t know yet about that weird error by him in his dissent in the EPA case. I should have changed the title yesterday; I think I’ll tweak it now, even though the post is old now.
The “memory lapse” I’m talking about in this post isn’t actually a memory lapse, though. Scalia well remembers exactly what the situation was in Garcetti, and what the result was, because it’s critical to the arguments in Harris v. Quinn, which they’re deciding this term. It’s probably already been decided, and the dissent is being written now.
I first learned about this case this morning on firedoglake, and the more I dig into it the more my mind is blown away. I’m not going to dig any more because life is too short. I can’t figure out why this case even exists, or why anybody is arguing whether First Amendment applies or not. How does the First Amendment, “The government shall make no law…” connect to employment? To me the biggest disconnect is that no one has even yet claimed that Lane was fired because of his testimony! It sounds like that’s what Lane wants to contend, but he apparently hasn’t yet been allowed to do that because this has to be resolved first. I think the disconnect underlying all the confusion goes back to the Court’s decision (and I don’t have any idea what the case was) that an employee can be fired for any reason or no reason at all. I had thought that only applies to “at will” employees, but from the reported remarks by the justices it apparently applies even to people who have contracts or legal (civil service) protections. Anyway, how can Gershengorn, the deputy solicitor general, argue that protecting testimony in court prevents police departments from evaluating the performance of an officer’s duties? Bartender, a double Prestone here.