Lane v. Franks and the First Amendment Rights of National Security Leakers

At various points in the past, I’ve suggested that, read broadly, the Supreme Court’s 2006 decision in Garcetti v. Ceballos could sound the death knell for First Amendment defenses by national security leakers and/or whistleblowers, insofar as Justice Kennedy’s majority opinion in that case included at least some language tending to suggest that the First Amendment categorically would not apply to speech that would not have been possible but for the speaker’s public employment. And because national security leakers and/or whistleblowers are usually disclosing information to which they are only privy by dint of their government employment, one could thereby infer that the First Amendment would categorically not apply to all such speech–regardless of its potential value to public discourse.

But, as Marty predicted it would, the Supreme Court took a step back from that First Amendment cliff in its unanimous decision today in Lane v. Franks. As Justice Sotomayor explained in the opinion’s key passage (on this point, at least):

Garcetti said nothing about speech that simply relates to public employment or concerns information learned in the course of public employment. The Garcetti Court made explicit that its holding did not turn on the fact that the memo at issue “concerned the subject matter of [the prosecutor’s] employment,” because “[t]he First Amendment protects some expressions related to the speaker’s job.” In other words, the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.

Although I respectfully disagree with Justice Sotomayor that Garcetti was clear on this point, I’m quite happy to see the Court endorsing this narrower reading. And for present purposes, that means that “Pickering balancing“–the pre-Garcetti test–will continue to govern the First Amendment rights of government employees who are speaking on matters of public concern, even when the speech would not have been possible without their government employment. That doesn’t mean the First Amendment will always, or even often, protect putative leakers or whistleblowers. But what Lane makes clear is that it will protect those individuals’ speech more than never. 

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About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).