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Abstract

In a number of jurisdictions around the United States, police officers and other public employees that regularly testify as part of their ordinary job duties can be placed in compromising positions. Because these types of employees regularly testify as part of their ordinary job duties, such testimony is considered “employee speech” and therefore unprotected by the First Amendment. Consequently, governmental employers can take adverse employment actions against an employee based on his or her truthful trial testimony without violating the employee’s First Amendment rights. Drawing from the Supreme Court’s 2014 decision in Lane v. Franks and other circuit court cases, this Note argues that trial testimony provided by a public employee during the course of their ordinary job duties should be considered “citizen speech commenting on a matter of public concern” and therefore protected by the First Amendment. Further, this Note argues that the traditional balancing test articulated by the Supreme Court in Pickering v. Board of Education of Township High School District 205, Will County, Illinois, is ultimately the proper inquiry to determine whether the governmental employer should be prohibited from taking adverse employment action against the employee based on their trial testimony.

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