I Can No Longer Support This Administration . .

[BainsBane]

75. Scotusblog is a more reliable source on Supreme Court arguments

largely because they engage with the laws at issue rather than being interested in grinding a political ax of some kind.

http://www.scotusblog.com/2014/04/argument-analysis-how-wrong-was-the-eleventh-circuit-about-the-first-amendment-protections-for-a-public-employees-subpoenaed-testimony/

While Lane seems a stellar employee, as the Alabama Attorney General Luther Strange all but admitted, there were concerns about other employees who might be protected by a bright-line rule protecting testimony. What if the employee is a lab technician who testifies as part of his job duties? Can the employer discipline him if the employee cannot perform this part of his job? Or if, as Justice Sotomayor asked, the employee “comes to court dressed in a clown suit”? Should the subpoena be the deciding factor? Arguing for Edward Lane, Tejinder Singh suggested a narrow holding that essentially reasserted Garcetti v. Ceballos and Pickering v. Board of Education, subject only to the clarification that even when a public employee’s testimony “describes facts that the employee learned in the course of his employment, it’s still protected.” Singh did articulate the “strong version of the First Amendment” rule that would protect testimony based on a “separate and superior obligation to testify truthfully to the court,” but he made clear he did not advocate its adoption. Deputy Solicitor General Ian Gershengorn, appearing on behalf of the federal government as an amicus, argued that such a broad rule would intrude on the government’s ability to supervise its own employees, especially those who testified as part of their employment.

Importantly, the balancing required by Pickering includes weighing the government employer’s interest, even if it is citizen speech on a matter of public concern. The lower courts had stopped short of this balancing because they considered Lane’s testimony to be in the course of his employment. But in the argument, this final balancing requirement surfaced several times. Singh used it as the answer to the “clown costume” hypothetical. Gershengorn seemed less satisfied by Pickering balancing as a solution, even when pressed by Justices Kagan, Kennedy, and Sotomayor.

Full coverage of the case: http://www.scotusblog.com/case-files/cases/lane-v-franks/