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Supreme Court Justice Antonin Scalia. (Photo by Alex Wong/Getty Images) / Alex Wong/Getty Images

Correction: An earlier version of this story incorrectly said the Alabama Education Association is currently paying Edward Lane's lawyers.

WASHINGTON - Government employees who testify about public corruption are protected by the First Amendment, several Supreme Court justices suggested Monday.

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.

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."

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.

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."

State and federal government lawyers also 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.

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.

A second issue before the justices is whether Franks, the former college president, can be held liable for money damages in a wrongful termination suit Lane filed against Franks and the college, or whether he has immunity as a state employee.

Franks says Lane was fired because of budget cuts, not retaliation. In addition to the money, Lane is asking to get his job back.

"If we lose on immunity that means we can't get money damages from Franks, and I'm not saying that's unimportant, but the more important principle is to send a clear message that people can't terminate public employees for exercising their free-speech rights," said John Saxon, an attorney for Lane. "He could have resisted the subpoena, been found in contempt and he would have gone to jail. Instead he honors the subpoena, testifies, and does his job."

While Strange backs Lane on the free-speech question, he backs Franks on the issue of immunity. Strange, who said he's looking out for state employees on each side of the controversy, said Franks is entitled to immunity because, under federal case law in Alabama at the time, Lane's testimony wasn't protected speech.

Lane's lawyers were paid by the Alabama Education Association at the lower court level because Lane was an association member while he worked at the college.

Lane was interim director of the Community Intensive Training for Youth Program at the college in 2006. After auditing the program's finances, he found no evidence Schmitz, the legislator, was performing her community relations job. Lane fired Schmitz in October 2006, and said she and others threatened that he and the college would suffer consequences.

The Schmitz case was part of a larger corruption investigation in Alabama related to state lawmakers who also held jobs at public colleges. The scandal led to several convictions and an overhaul of state ethics laws.

The National Association of Police Organizations is one of many groups supporting Lane's case.

"This Court must send the message that retaliation against police officers because of their testimony is forbidden," according to the group's brief. "If not, floodgates of greater retaliation will inflict grave harm on our nation's front line defenders, thus tampering with the operation of the rule of law."

The justices are expected to issue a ruling later this summer.



Copyright 2014 USATODAY.com

Read the original story: Justices suggest public employees' testimony is protected

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