I swear to uphold common sense, even when the law is absurd. Photographer: John Moore/Getty Images
I swear to uphold common sense, even when the law is absurd. Photographer: John Moore/Getty Images

Can a government employee be disciplined for what he says on oath in court after being subpoenaed? If you answered, “Of course not,” think again. Today the Supreme Court heard oral argument in a case, Lane v. Franks, that will answer this question -- and the outcome appeared far from certain.

To see how we’ve reached this strange pass, you have to start with the law of free speech as applied to government employees. In 1968's Pickering v. Board of Education, the Supreme Court said, reasonably enough, that determining the speech rights of a government employee requires balancing the employees interests “as a citizen, in commenting upon matters of public concern” and the state interest “as an employer” and doing its job. So far, so good.

But in a 2006 case, Garcetti v. Ceballos, the court said that when a government employee was acting within the scope of his employment, it didn't matter if he was speaking on a matter of public concern at all: he could be punished by his employer.

Today’s case arose from pretty shocking facts that were certainly of public concern. Edward Lane, hired by Central Alabama Community College to direct a program for at-risk youth, discovered that a state legislator had a no-show job in the program. Against the advice of his boss, the college president, Lane fired the legislator -- then testified at her two federal criminal fraud trials. For his pains, Lane was fired from his job; unsurprisingly, he sued to be reinstated.

The U.S. Court of Appeals for the 11th Circuit rather astonishingly held against Lane and in favor of the community college. The court's reasoning followed the logic of the Garcetti case: it said that Lane was testifying in the course of his employment, and so his speech wasn't protected by the First Amendment even if it touched on a matter of public concern.

The justices today seemed prepared to overturn the 11th Circuit’s decision – but on what ground? One possibility would be to say simply that Lane wasn’t testifying in the course of his employment, because his job as director of the program didn't include testifying.

But another possibility, raised by the American Civil Liberties Union in its friend of the court briefs, and repeatedly aired by Justice Sonia Sotomayor in oral argument, would be for the court to lay down a general rule that any government employee testifying in court may not be punished or disciplined for the content of his testimony. As far as Sotomayor was concerned, the rule would make sense because it would tell employees that they couldn't be punished for telling the truth in court.

The office of the solicitor general disagreed. Appearing as a friend of the court, Deputy Solicitor General Ian Gershengorn today said he would “strongly urge” the court not to make a general rule protecting testimony as free speech. The core of the government's argument was that police and other investigative personnel regularly testify as a central part of their employment. To render them immune from discipline for how they perform this aspect of the job, Gershengorn argued, would curtail the government's capacity to run its affairs efficiently, and would strike at the heart of the Garcetti ruling.

This objection touched on a fascinating aspect of testimony by government officials. Individually, those called to testify swear an oath, and are in principle obligated to tell the truth as individuals. Practically, of course, police appear as representatives of the government institution for which they work. It is in this sense accurate to say that they testify in the course of their employment. And if you are running the police department, it's natural enough to want to condition officers’ testimony on their own hopes of professional advancement.

Sotomayor pushed back: “But what kind of message are we giving when we're telling employees, [if] you're subpoenaed [for] any reason in a trial, go and tell a falsehood because otherwise you can be fired?” But Gershengorn replied plausibly enough that even in the Garcetti case the truth had been compromised. There, the court upheld punishment for an employee of the Los Angeles County District Attorney's Office after he wrote a memo to supervisors showing that the police had lied to get a search warrant and recommending dismissal of the case.

The problem, of course, is that the Garcetti decision was itself outrageous. There is no question that Sotomayor is right -- and yet the court isn’t going to go her way, or the ACLU’s, with a general rule. We’ve gone so far in thinking of the government as just another employer that we’ve forgotten it should be held to a higher standard. The earliest iterations of free speech included protections for statements in the courts and parliament. Regardless of who you work for, you should be free tell the truth in court without fear of repercussions.

To contact the writer of this article: Noah Feldman at noah_feldman@harvard.edu.

To contact the editor responsible for this article: Tobin Harshaw at tharshaw@bloomberg.net.