In the interest of protecting the judicial truth-seeking process, this Note argues that truthful testimony in general, and particularly compelled truthful testimony, should receive First Amendment safeguards, and its protection should not be predicated on “matters of public concern” or “official duties” tests. Instead, truthful testimony should be immunized from job retaliation similar to the way testimony has been immunized from damage claims. Part I of this Note reviews the Supreme Court’s stance regarding public employees’ speech. Part II discusses the protection that witness testimony enjoys from civil damage claims and will argue that a public employee’s truthful testimony should receive the same immunization. Next, Part III identifies the lower courts’ divergent decisions on the issue of truthful testimony pre-Garcetti and discusses the retaliation that public employees face at work as a result of their truthful testimonies. Part IV discusses the lower courts’ split decisions post-Garcetti. Part V demonstrates the ramifications that legal uncertainty has on this issue—not only on public employees, but on the integrity of our judicial system and the functioning of our government as a whole. Lastly, Part V concludes that truthful testimony should be protected and afforded immunity from job retaliation.
Adelaida Jasperse, CONSTITUTIONAL LAW—DAMNED IF YOU DO, DAMNED IF YOU DON’T: A PUBLIC EMPLOYEE’S TRILEMMA REGARDING TRUTHFUL TESTIMONY, 33 W. New Eng. L. Rev. 623 (2011), https://digitalcommons.law.wne.edu/lawreview/vol33/iss2/13